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PIGGYBACK CONTRACT FOR
BUSINESS CONSULTING SERVICES
BY AND BETWEEN
NEW YORK STATE OFFICE OF GENERAL SERVICES
AND
DELOITTE CONSULTING LLP
New York State Contract #
Master Contract #
01620
THIS CONTRACT
for establishment of a “piggyback” contract is made between
the People of the State of New York
,
acting by and through the Commissioner of General Services (hereinafter “State” or “OGS”) whose principal place of
business is the 36th Floor, Corning Tower, The Governor Nelson A. Rockefeller Empire State Plaza, Albany, New York
12242, pursuant to authority granted under New York State Finance Law §163(10)(e), and Deloitte Consulting LLP
(hereinafter “Contractor” or “Vendor” or “Offerer”), with its principal place of business at 30 Rockefeller Plaza, New York,
NY 10112-0015. OGS and Contractor are hereby individually referred to as a “Party” and collectively referred to as “Parties.”
Whereas
, in accordance with New York State Finance Law §163(10)(e), the Commissioner of OGS (hereinafter
“Commissioner”) may authorize purchases required by New York State agencies or other authorized purchasers by
approving the use of a contract let by any department, agency or instrumentality of the United States government and/or
any department, agency, office, political subdivision or instrumentality of any state or states (hereinafter “Issuing Agency”);
Whereas
, The State of Washington Department of Enterprise Services (Enterprise Services) has recently let a certain
Contract Number 01620
with Contractor for Business Consulting Services to be acquired under the Master Contract
(hereinafter "Master Contract");
Whereas
, OGS Procurement Services (hereinafter “OGS” or “Procurement Services”), on behalf of the Commissioner, finds
it necessary and desirable to enter into a contract (hereinafter “Piggyback Contract” or “Contract”), with Contractor for the
purchase of specified products or services under the terms and conditions established pursuant to the Master Contract; and
Whereas
, OGS provided notification of its intention to enter into this Piggyback Contract with Contractor by placing a notice
in the May 02, 2024 edition of the New York State Contract Reporter.
Now Therefore
, by completing and signing this Piggyback Contract, Contractor is willing and able to enter into a contract
and authorizes OGS to process the Piggyback Contract and provide notification to Authorized Users regarding the
availability of this Piggyback Contract.
1.
INTRODUCTION
1.1
OVERVIEW AND SCOPE
This document sets forth the terms and conditions governing acquisitions under this Piggyback Contract for use by
Authorized Users. All the terms, conditions, covenants and representations contained herein and in the Master Contract,
except as modified by or in conflict with the terms of this Piggyback Contract, are hereby incorporated by reference and
deemed to be a part of this Piggyback Contract as if fully set forth at length herein. The terms and conditions of this
Piggyback Contract shall supersede any conflicting terms and conditions set forth in the Master Contract. For purposes of
this Piggyback Contract, where references are made to the State of Washington, Enterprise Services in the Master Contract,
PS70452
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such references shall be deemed to be to Procurement Services, and any rights given to or reserved by the State of
Washington, Enterprise Services in the Master Contract shall be given to or reserved by Procurement Services.
The Master Contract is expressly amended as noted in Section 2.1,
Contract Documents and Conflict of Terms
, below.
1.2
ESTIMATED QUANTITIES
This Piggyback Contract will be an estimated quantity Contract. No specific quantities are represented or guaranteed, and
the State provides no guarantee of individual Authorized User participation. The Contractor must furnish all quantities
actually ordered at or below the Contract prices. The anticipated dollar value of the award for this Solicitation is
approximately $280,000,000 annually. Authorized Users will be encouraged to purchase from Contractors who offer the
Products and pricing that best meet their needs in the most practical and economical manner. See Appendix B
Estimated/Specific Quantity Contracts
.
Numerous factors could cause the actual quantities of Products purchased under this Piggyback Contract to vary
substantially from any estimates. Such factors include, but are not limited to, the following:
•
This Piggyback Contract may be a non-exclusive contract;
•
There is no guarantee of quantities to be purchased, nor is there any guarantee that demand will continue in any
manner consistent with previous purchases;
•
The individual value of this Piggyback Contract is indeterminate and will depend upon actual Authorized User
demand and actual quantities ordered during the contract period;
•
The State reserves the right to terminate this Piggyback Contract for cause or convenience prior to the end of the
term pursuant to the terms and conditions of this Piggyback Contract;
•
Contract pricing that is lower than anticipated could result in a higher quantity of purchases by Authorized Users
than anticipated; and
•
Contract pricing that is higher than anticipated could result in a lower quantity of purchases by Authorized Users
than anticipated.
By execution of this Piggyback Contract Contractor acknowledges the foregoing and agrees that actual good faith
purchasing volumes during the term of this Piggyback Contract could vary substantially from any estimates provided in this
Piggyback Contract or previous purchases.
1.3
NYS COMPTROLLER APPROVAL
In accordance with Section 112 of the State Finance Law, this Contract shall not be valid, effective or binding upon the State
until such Contract has been approved by the Office of the New York State Comptroller (“OSC”). Purchase orders or other
procurement transactions issued under such Contract(s) may also be subject to OSC approval.
2.
CONTRACT TERMS AND CONDITIONS
This section sets forth the terms and conditions of the Contract.
2.1
CONTRACT DOCUMENTS AND CONFLICT OF TERMS
This Piggyback Contract shall incorporate the following appendices and attachments as fully as if set forth herein at length.
Only documents expressly enumerated below shall be deemed a part of this Piggyback Contract, and references contained
in those documents to additional Contractor documents not enumerated below shall be of no force and effect. Conflicts
between these documents shall be resolved in the following descending order of precedence.
A. Appendix A –
Standard Clauses for NYS Contracts
(June 2023);
B. Appendix C –
Federal Funding Agency Mandatory Terms and Conditions
(October 2023);
C. Piggyback Contract (This Document);
D. Appendix B –
General Specifications
(April 2016)
E. Attachment 1 –
Pricing
;
F. Attachment 4 –
Insurance Requirements
;
G. Attachment 7 –
Report of Contract Usage
;
H. Attachment 6 –
Contractor and Reseller/Distributor Information
;
I.
First Amendment To Contract Number 01620; and
J. Master Contract Number 01620
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2.2
APPENDIX B MODIFICATIONS
The following Appendix B clauses are hereby modified for the purposes of this Contract:
A. Appendix B
Employees, Subcontractors and Agents
, and
Subcontractors and Suppliers
, has been modified in
accordance with Section 2.24 of this Piggyback Contact,
Subcontracting.
2.3
CONTRACT TERM AND EXTENSIONS
The term of this Piggyback Contract shall begin on the date of approval by OSC, pursuant to Section 1.3
NYS Comptroller
Approval
, and shall end upon the expiration or termination of the Master Contract, subject to OGS’ right to terminate this
Piggyback Contract as provided herein. The term of this Piggyback Contract shall be deemed extended whenever the term
of the Master Contract is extended, without the need for the Parties to execute an extension or amendment to this Piggyback
Contract.
2.4
CONTRACT SURVIVAL
The Master Contract Section 1 Term is hereby amended to add the following:
The starting date for each Authorized User Agreement will vary but the initial term will not exceed three (3) years in
duration. Authorized User Agreements fully executed prior to the expiration of the Piggyback Contract shall survive the
expiration date of the Piggyback Contract, as applicable, based on the term of the Authorized User Agreement.
2.5
PRICE
The price for Product shall either be at the agreed-upon discounts and service rates listed in Attachment 1 –
Pricing
, or at
a price that is more advantageous to the Authorized User.
2.5.1 TRAVEL, MEALS, AND LODGING
The Master Contract Section 5.4
Travel Costs
is hereby deleted and replaced with the following:
When provided for in the quote and resultant Authorized User Agreement, the Authorized Users may reimburse travel
expenses.
All
rules
and
regulations
associated
with
this
travel
can
be
found
at
http://osc.state.ny.us/agencies/travel/travel.htm. In no case will any travel reimbursement be paid that exceeds these rates.
All travel will be paid only as part of a deliverable specified within the Authorized User Agreement and must be billed with
that associated invoice with receipts attached.
The Contractor shall receive prior approval from the Authorized User for any travel that occurs during the term of an
Authorized User Agreement. Parking costs may not be paid by an Authorized User unless agreed upon in the Authorized
User Agreement.
Unless otherwise specified in writing by the Authorized User, a vehicle will not be provided by Authorized User to the
Contractor for travel. Therefore, the Contractor will be responsible for ensuring that the Contractor has access to an
appropriate vehicle (e.g., personal vehicle or rental vehicle) or common carrier with which to carry out any necessary travel.
For the Contractor to obtain reimbursement for the use of a rental vehicle, such use must be justified as the most cost-
effective mode of transportation under the circumstances (including consideration of the most effective use of time).
The Contractor shall provide evidence of three (3) written or telephone price quotes, and the paid invoice must detail the
type of vehicle rented, miles traveled, license plate number, and time of pickup and return. The Contractor is responsible
for keeping adequate records to substantiate any claims for reimbursement, by personnel for travel in performance of the
services. Determinations regarding claims for reimbursement are at the sole discretion of the Authorized User.
2.6
PRICE AND PRODUCT UPDATES
The Attachment 1 –
Pricing
set forth in the Contract may be updated from time to time, without a Contract amendment, to
reflect Contractor price changes, and the addition/deletion of Products, that have been approved for the Master Contract
pricelist. Contractor must notify OGS when the Master Contract holder has approved a Master Contract pricelist update,
and provide OGS with an electronic copy of the approval and the approved updated pricelist. Updates to Attachment 1 –
Pricing
shall be posted on the OGS website for this Contract, and be effective on the date that the updates were originally
approved by the Master Contract holder. For any Contract purchases made prior to OGS posting the approved Master
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Contract pricelist update on the OGS website, the Master Contract pricelist shall prevail as of the effective date approved
by the Master Contract holder ; provided that, Contractor has notified the Authorized User of the updated Master Contract
price prior to entering into the Authorized User Agreement.
2.7
BEST PRICING OFFER
During the Contract term, if the Commissioner becomes aware that the Contractor is selling substantially the same or a
smaller quantity of a Product outside of this Contract upon the same or similar terms and conditions as that of this Contract
at a lower price to a federal, state or local governmental entity, the price under this Contract, after consultation with the
Contractor, may be reduced to a lower price on a prospective basis at the discretion of the Commissioner. The
Commissioner reserves the right to request information to verify pricing for the purposes of this clause.
Any prompt payment terms (cash discounts) or quantity (volume) discounts which are included in the Master Contract will
also be included in this Piggyback Contract.
2.8
CATALOGS AND PRICE SHEETS
Catalogs and price lists shall be provided in accordance with the terms of the Master Contract. Upon request, Contractor
shall also assist Authorized Users in the use of such documents.
2.9
ORDERING
Purchase Orders shall be made in accordance with the terms set forth in Appendix B
Purchase Orders
. Authorized Users
may submit orders over the phone, and, if available, may submit orders electronically via web-based ordering, e-mail, or
facsimile at any time. Orders submitted shall be deemed received by Contractor on the date submitted.
All orders shall reference Contract number, requisition, and/or Purchase Order number (if applicable). Upon Contractor’s
receipt of an order, confirmation is to be provided to the Authorized User electronically or via facsimile. Order confirmation
should be sufficiently detailed, and include, at a minimum, purchase price, date of order, delivery information (if applicable),
Authorized User name, and sales representative (if applicable).
2.10
PURCHASING CARD ORDERS
If the Contractor accepts orders using the State’s Purchasing Card (see Appendix B
Purchasing Card
), also referred to as
the Procurement Card, the Contractor shall not charge or bill the Authorized User for any additional charges related to the
use of the Purchasing Card, including but not limited to processing charges, surcharges, or other fees.
2.11
MINIMUM ORDER
There are no minimum order quantities under this Piggyback Contract.
2.12
INVOICING AND PAYMENT
Invoicing and payment shall be made in accordance with the terms set forth in Appendix B
Contract Invoicing
.
The Contractor is required to provide the Authorized User with one invoice for each Purchase Order at the time of
delivery.
The invoice must include detailed line-item information to allow Authorized Users to verify that pricing at point of
receipt
matches the Contract price on the original date of order. At a minimum, the following fields must be included on
each invoice:
•
Contractor Name
•
Contractor Billing Address
•
Contractor Federal ID Number
•
NYS Vendor ID Number
•
Account Number
•
NYS Contract Number
•
Name of Authorized User indicated on the Purchase Order
•
NYS Agency Unit ID (if applicable)
•
Authorized User’s Purchase Order Number
•
Order Date
•
Invoice Date
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•
Invoice Number
•
Invoice Amount
•
Product Descriptions
•
Unit Price
•
Quantity
•
Unit of Measure
•
Dates of Service (if applicable)
Cost centers or branch offices within an Authorized User may require separate invoicing as specified by each Authorized
User. The Contractor's billing system shall be flexible enough to meet the needs of varying ordering systems in use by
different Authorized Users. Visit the following link for further guidance for vendors on invoicing:
https://bsc.ogs.ny.gov/nys-
vendors
.
2.13
PROMPT PAYMENTS
Appendix B
Prompt Payments
, applies to this Piggyback Contract. The parties acknowledge that Article 11-A of the State
Finance Law requires payments to small businesses to be made within 15 days if the conditions set forth therein are met.
The Federal Prompt Payment Act (or any other law governing payment terms incorporated in the Master Contract) does
not
apply to the Piggyback Contract regardless of customer.
2.14
CONTRACT ADMINISTRATIVE FEE
In lieu of any management fee pursuant to Section 8.2 of the Master Contract, the awarded Contractor(s) are required to
pay OGS, directly or through an agent, an Administrative Fee in the amount of one and one half percent (1.5%) of all sales
generated from this Contract, or any resulting agreement. Payments will be due quarterly in arrears. The due date for each
payment will be 30 calendar days following the end of each Contract quarter (Contract quarters are January 1 to March 31,
April 1 to June 30, July 1 to September 30, and October 1 to December 31). Accordingly, the due date for each
Administrative Fee payment is January 30, April 30, July 30, and October 30, for each quarter or portion of a quarter during
the term of the Contract. Submission details including address and format will be provided no less than one (1) month prior
to the due date for the first payment. OGS reserves the right to partner with a third party to manage Contract Usage Reports
(see Section 2.19
Report of Contract Usage
) and collection and reconciliation of the Administrative Fee.
2.15
AUDITS
In lieu of any audit right pursuant to Section 9.2 of the Master Contract, OGS reserves the right, directly or through a
designated agent, to audit the accuracy of the Contract Usage Reports (see Section 2.19
Report of Contract Usage
) and
Administrative Fees (see Section 2.14
Contract Administrative Fee)
. Audits shall be conducted during regular business
hours, upon not less than fifteen (15) business days prior written notice. Administrative Fees will be due immediately for any
errors or omissions disclosed by any such audit. If, as a result of any such audit, Administrative Fees are determined to
have been underpaid by more than five percent (5%) for the period audited, Contractor shall pay the costs of such audit or
three times the discrepancy, whichever is higher. In addition, OGS reserves the right, directly or through an agent, to review
Contract Usage Reports and other such documentation for accuracy of all required reporting documents for both NYS
Authorized Users and other parties using this Contract or resulting agreement. As a result of such review, if inaccuracies of
more than 5% are found in any of the reporting documents, Contractors shall pay the cost of such audit or three times the
discrepancy, whichever is higher. Failure to make such payments or repeated errors on subsequent audits may result in
the scheduling of a responsibility meeting in relation to this Contract.
2.16
CONTRACT ADMINISTRATION
The Contractor shall provide a sufficient number of Customer Service employees who are knowledgeable and responsive
to Authorized User needs and who can effectively service the Contract. Contractor shall also provide an Emergency Contact
in the event of an emergency occurring after business hours or on weekend/holidays.
Contractor shall provide a dedicated Contract Administrator to support the updating and management of the Contract on a
timely basis. Information regarding the Customer Service, Emergency Contact, and Contract Administrator shall be set forth
on the Contract Award Notification (CAN) and on the Contractor Information page for this Contract, which will be posted on
the OGS website. Contractor must notify OGS within five Business Days if it’s Contract Administrator, Emergency Contact,
or Customer Service employees change, and provide an interim contact person until the position is filled. Changes shall be
submitted electronically via e-mail to the OGS Contract Management Specialist.
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2.17
NYS FINANCIAL SYSTEM (SFS)
New York State is currently operating on an Enterprise Resource Planning (ERP) system, Oracle PeopleSoft software,
referred to as the Statewide Financial System (SFS). SFS supports requisition-to-payment processing and financial
management functions.
The State may be implementing additional PeopleSoft modules in the near future. Further information regarding business
processes, interfaces, and file layouts currently in place may be found at:
http://www.sfs.ny.gov
and
https://web.osc.state.ny.us/agencies/guide/MyWebHelp
.
2.18
CONTRACTOR’S INSURANCE REQUIREMENTS
The Contractor shall maintain in force at all times during the terms of the Contract, policies of insurance pursuant to the
requirements outlined in Attachment 4 –
Insurance Requirements
.
2.19
REPORT OF CONTRACT USAGE
In lieu of any contract reporting pursuant to Section 8.1 and Section 8.3 of the Master Contract, Contractor shall submit
Attachment 7 –
Report of Contract Usage
including total sales to Authorized Users of this Contract by Contractor, and all
authorized resellers, dealers and distributors, if any, no later than 30 days after the close of each calendar quarter. If the
Contract period begins or ends in a fractional portion of a reporting period, only the actual Contract sales for this fractional
period should be included in the quarterly report. If there are no Contract sales during the reporting period, Contractor must
report zero sales.
Contractors shall specify if any authorized resellers, dealers or distributors are NYS Certified Minority- and/or Women-
Owned Business Enterprises (MWBEs), small business enterprises (SBEs), or Service-Disabled Veteran-Owned
Businesses (SDVOBs).
The report is to be submitted electronically via e-mail in Microsoft Excel to OGS Procurement Services, to the attention of
the individual listed on the front page of the Contract Award Notification and shall reference the Contract Group Number,
Award Number, Contract Number, Sales Period, and Contractor's name.
The report in Attachment 7 –
Report of Contract Usage
contains the minimum information required. Additional related sales
information, such as detailed user purchases may be required by OGS and must be supplied upon request. Failure to submit
reports on a timely basis may result in Contract cancellation and designation of Contractor as non-responsible.
This Contract may be terminated if, on the one-year anniversary date of the Contract Award, and annually thereafter, the
reports required to be filed under this Section show that the Contractor has made no sales to any Authorized User under
the Contract for the prior year. The Contract may also be terminated for failure to file the reports required under this Section.
Termination of the Contract under this Section is in addition to Appendix B
Termination
, and shall take effect upon written
notification to the Contractor.
2.20
CONTRACTOR REQUIREMENTS AND PROCEDURES FOR BUSINESS PARTICIPATION
OPPORTUNITIES FOR NYS CERTIFIED MINORITY- AND WOMEN-OWNED BUSINESS
ENTERPRISES AND EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITY GROUP
MEMBERS AND WOMEN
I.
New York State Law
Pursuant to New York State Executive Law Article 15-A and Parts 140-145 of Title 5 of the New York Codes, Rules and
Regulations (“NYCRR”), the New York State Office of General Services (“OGS”) is required to promote opportunities
for the maximum feasible participation of New York State-certified Minority- and Women-owned Business Enterprises
(“MWBEs”) and the employment of minority group members and women in the performance of OGS contracts.
II. General Provisions
A.
OGS is required to implement the provisions of New York State Executive Law Article 15-A and 5 NYCRR
Parts 140-145 (“MWBE Regulations”) for all State contracts as defined therein, with a value (1) in excess
of $25,000 for labor, services, equipment, materials, or any combination of the foregoing or (2) in excess
of $100,000 for real property renovations and construction.
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B.
The Contractor agrees, in addition to any other nondiscrimination provision of the Contract and at no
additional cost to OGS, to fully comply and cooperate with OGS in the implementation of New York State
Executive Law Article 15-A and the regulations promulgated thereunder. These requirements include equal
employment opportunities for minority group members and women (“EEO”) and contracting opportunities
for MWBEs. Contractor’s demonstration of “good faith efforts” pursuant to 5 NYCRR §142.8 shall be a part
of these requirements. These provisions shall be deemed supplementary to, and not in lieu of, the
nondiscrimination provisions required by New York State Executive Law Article 15 (the “Human Rights
Law”) or other applicable federal, State or local laws.
C.
Failure to comply with all of the requirements herein may result in a finding of non-responsiveness, a finding
of non-responsibility, breach of contract, withholding of funds, liquidated damages pursuant to clause IX of
this section, and/or enforcement proceedings as allowed by the Contract and applicable law.
III. Equal Employment Opportunity (EEO)
A.
The provisions of Article 15-A of the Executive Law and the rules and regulations promulgated thereunder
pertaining to equal employment opportunities for minority group members and women shall apply to all
Contractors, and any subcontractors, awarded a subcontract over $25,000, for labor, services, including
legal, financial and other professional services, travel, supplies, equipment, materials, or any combination
of the foregoing, to be performed for, or rendered or furnished to, the contracting State agency (the “Work”)
except where the Work is for the beneficial use of the Contractor.
1.
Contractor and subcontractors shall undertake or continue existing EEO programs to ensure that minority
group members and women are afforded equal employment opportunities without discrimination because
of race, creed, color, national origin, sex, age, disability or marital status. For these purposes, EEO shall
apply in the areas of recruitment, employment, job assignment, promotion, upgrading, demotion, transfer,
layoff, or termination and rates of pay or other forms of compensation. This requirement does not apply to:
(i) the performance of work or the provision of services or any other activity that is unrelated, separate or
distinct from the Contract; or (ii) employment outside New York State.
2.
By entering into this Contract, Contractor certifies that the text set forth in clause 12 of Appendix A, attached
hereto and made a part hereof, is Contractor’s equal employment opportunity policy. In addition, Contractor
agrees to comply with the Non-Discrimination Requirements set forth in clause 5 of Appendix A.
B.
Form EEO 100 - Staffing Plan. Plan
To ensure compliance with this section, the Contractor agrees to submit or has submitted with the Bid a
staffing plan on Form EEO 100 to OGS to document the composition of the proposed workforce to be
utilized in the performance of the Contract by the specified categories listed, including ethnic background,
gender, and federal occupational categories.
C.
NYS Contract System Workforce Utilization Reporting Module (Commodities & Services)
The Contractor shall complete, and shall require each of its subcontractors to complete a Workforce Audit
on a quarterly basis throughout the term of this Contract, by the 10th day of April, July, October, and January
to report the actual workforce utilized during the previous quarter in the performance of the Contract by the
specified categories listed including ethnic background, gender, and Federal occupational categories.
Contractor shall coordinate with its subcontractors to ensure that all workers associated with this Contract
are properly counted and reported. To prepare the report, Contractor and its subcontractors shall use the
NYS
Contract
System
Workforce
Audit
Module
found
at
the
following
website:
https://ny.newnycontracts.com
The Workforce Audits must be completed electronically in the NYS Contract System Workforce Audit
Module. Separate audits shall be completed by Contractor and all subcontractors, and the Contractor is
responsible for ensuring timely submission of the Workforce Audit by their subcontractors. In limited
instances, the Contractor or subcontractor may not be able to separate out the workforce utilized in the
performance of the Contract from its total workforce. When a separation can be made, the Contractor or
subcontractor shall complete the Workforce Audit and indicate that the information provided relates to the
actual workforce utilized on the Contract. When the workforce to be utilized on the Contract cannot be
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separated out from the Contractor's or subcontractor's total workforce, the Contractor or subcontractor shall
complete the Workforce Audit and indicate that the information provided is the Contractor's or
subcontractor’s total workforce during the subject time frame, not limited to work specifically performed
under the Contract.
D.
Contractor shall comply with the provisions of the Human Rights Law, all other State and federal statutory
and constitutional non-discrimination provisions. Contractor and subcontractors shall not discriminate
against any employee or applicant for employment because of race, creed (religion), color, sex, national
origin, sexual orientation, military status, age, disability, predisposing genetic characteristic, marital status
or domestic violence victim status, and shall also follow the requirements of the Human Rights Law with
regard to non-discrimination on the basis of prior criminal conviction and prior arrest.
IV. Contract Goals
A.
OGS hereby establishes an overall goal of 30% for MWBE participation, 15% for Minority-Owned Business
Enterprises (“MBE”) participation and 15% for Women-Owned Business Enterprises (“WBE”) participation
(based on the current availability of qualified MBEs and WBEs). The total Contract goal can be obtained by
utilizing any combination of MBE and /or WBE participation for subcontracting and supplies acquired under
the Contract.
B.
For purposes of providing meaningful participation by MWBEs on the Contract and achieving the Contract
goals established in clause IV-A hereof, Contractor should reference the directory of New York State
Certified MWBEs found at the following internet address:
https://ny.newnycontracts.com/
. The MWBE
Regulations are located at 5 NYCRR § 140 – 145. Questions regarding compliance with MWBE
participation goals should be directed to the Designated Contacts within the OGS Office of Business
Diversity. Additionally, following Contract execution, Contractor is encouraged to contact the Division of
Minority and Women’s Business Development ((518) 292-5250; (212) 803-2414; or (716) 846-8200) to
discuss additional methods of maximizing participation by MWBEs on the Contract.
C.
Contractor must document “good faith efforts” to provide meaningful participation by MWBEs as
subcontractors or suppliers in the performance of the Contract (see clause VII below).
V. MWBE Utilization Plan
A.
In accordance with 5 NYCRR § 142.4, Bidders are required to submit a completed Utilization Plan on Form
MWBE 100 with their bid.
B.
The Utilization Plan shall list the MWBEs the Bidder intends to use to perform the Contract, a description
of the Contract scope of work the Bidder intends the MWBE to perform to meet the goals on the Contract,
the estimated or, if known, actual dollar amounts to be paid to an MWBE. By signing the Utilization Plan,
the Bidder acknowledges that making false representations or including information evidencing a lack of
good faith as part of, or in conjunction with, the submission of a Utilization Plan is prohibited by law and
may result in penalties including, but not limited to, termination of a contract for cause, loss of eligibility to
submit future bids, and/or withholding of payments. Any modifications or changes to the agreed participation
by New York State Certified MWBEs after the Contract award and during the term of the Contract must be
reported on a revised MWBE Utilization Plan and submitted to OGS.
C.
By entering into the Contract, Bidder/Contractor understands that only sums paid to MWBEs for the
performance of a commercially useful function, as that term is defined in 5 NYCRR § 140.1, may be applied
towards the achievement of the applicable MWBE participation goal. When an MWBE is serving as a broker
on the Contract, only 25 percent of all sums paid to a broker shall be deemed to represent the commercially
useful function performed by the MWBE
D.
OGS will review the submitted MWBE Utilization Plan and advise the Bidder of OGS acceptance or issue
a notice of deficiency within 30 days of receipt.
E.
If a notice of deficiency is issued; Bidder agrees that it shall respond to the notice of deficiency, within seven
(7) business days of receipt, by submitting to OGS a written remedy in response to the notice of deficiency.
If the written remedy that is submitted is not timely or is found by OGS to be inadequate, OGS shall notify
the Bidder and direct the Bidder to submit, within five (5) business days of notification by OGS, a request
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for a partial or total waiver of MWBE participation goals on Form BDC 333.1. Failure to file the waiver form
in a timely manner may be grounds for disqualification of the bid or proposal.
F.
OGS may disqualify a Bidder’s bid/proposal as being non-responsive under the following circumstances:
(a)
If a Bidder fails to submit an MWBE Utilization Plan;
(b)
If a Bidder fails to submit a written remedy to a notice of deficiency;
(c)
If a Bidder fails to submit a request for waiver; or
(d)
If OGS determines that the Bidder has failed to document good faith efforts.
G.
If awarded a Contract, Contractor certifies that it will follow the submitted MWBE Utilization Plan for the
performance of MWBEs on the Contract pursuant to the prescribed MWBE goals set forth in clause IV-A of
this Section.
H.
Bidder/Contractor further agrees that a failure to submit and/or use such completed MWBE Utilization Plan
shall constitute a material breach of the terms of the Contract. Upon the occurrence of such a material
breach, OGS shall be entitled to any remedy provided herein, including but not limited to, a finding of
Contractor non-responsiveness.
VI. Request for Waiver
A.
Prior to submission of a request for a partial or total waiver, Bidder shall contact the Designated Contacts
listed on page 1 of this document for guidance.
B.
In accordance with 5 NYCRR § 142.7, a Bidder/Contractor who is able to document good faith efforts to
meet the goal requirements, as set forth in clause VII below, may submit a request for a partial or total
waiver on Form BDC 333.1, accompanied by supporting documentation. A Bidder may submit the request
for waiver at the same time it submits its MWBE Utilization Plan. If a request for waiver is submitted with
the MWBE Utilization Plan and is not accepted by OGS at that time, the provisions of clauses V(C), (D) &
(E) will apply. If the documentation included with the Bidder’s/Contractor’s waiver request is complete, OGS
shall evaluate the request and issue a written notice of acceptance or denial within twenty (20) business
days of receipt.
C.
Contractor shall attempt to utilize, in good faith, any MBE or WBE identified within its MWBE Utilization
Plan, during the performance of the Contract. Requests for a partial or total waiver of established goal
requirements made subsequent to Contract award may be made at any time during the term of the Contract
to OGS, but must be made no later than prior to the submission of a request for final payment on the
Contract.
D.
If OGS, upon review of the MWBE Utilization Plan and Monthly MWBE Contractor Compliance Reports
determines that Contractor is failing or refusing to comply with the contract goals and no waiver has been
issued in regards to such non-compliance, OGS may issue a notice of deficiency to the Contractor. The
Contractor must respond to the notice of deficiency within seven (7) business days of receipt. Such
response may include a request for partial or total waiver of MWBE contract goals.
VII. Required Good Faith Efforts
In accordance with 5 NYCRR § 142.8, Contractors must document their good faith efforts toward utilizing MWBEs on
the Contract. Evidence of required good faith efforts shall include, but not be limited to, the following:
1.
A list of the general circulation, trade and MWBE-oriented publications and dates of publications in which
the Contractor solicited the participation of certified MWBEs as subcontractors/suppliers, copies of such
solicitations and any responses thereto.
2.
A list of the certified MWBEs appearing in the Empire State Development (“ESD”) MWBE directory that
were solicited for this Contract. Provide proof of dates or copies of the solicitations and copies of the
responses made by the certified MWBEs. Describe specific reasons that responding certified MWBEs were
not selected.
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3.
Descriptions of the Contract documents/plans/specifications made available to certified MWBEs by the
Contractor when soliciting their participation and steps taken to structure the scope of work for the purpose
of subcontracting with, or obtaining supplies from, certified MWBEs.
4.
A description of the negotiations between the Contractor and certified MWBEs for the purposes of
complying with the MWBE goals of this Contract.
5.
Dates of any pre-bid, pre-award or other meetings attended by Contractor, if any, scheduled by OGS with
certified MWBEs whom OGS determined were capable of fulfilling the MWBE goals set in the Contract.
6.
Other information deemed relevant to the request.
VIII. Monthly MWBE Contractor Compliance Report
A.
In accordance with 5 NYCRR § 142.10, Contractor is required to report Monthly MWBE Contractor
Compliance to OGS during the term of the Contract for the preceding month’s activity, documenting
progress made towards achievement of the Contract MWBE goals. OGS requests that all Contractors use
the New York State Contract System (“NYSCS”) to report subcontractor and supplier payments made by
Contractor to MWBEs performing work under the Contract. The NYSCS may be accessed at
https://ny.newnycontracts.com/. This is a New York State-based system that all State agencies and
authorities will be implementing to ensure uniform contract compliance reporting throughout New York
State.
B.
When a Contractor receives a payment from a State agency, it is the Contractor’s responsibility to pay its
subcontractors and suppliers in a timely manner. On or after the first day of each month, the Contractor will
receive an email or fax notification (“audit notice”) indicating that a representative of its company needs to
log-in to the NYSCS to report the company’s MWBE subcontractor and supplier payments for the preceding
month. The Contractor must also report when no payments have been made to a subcontractor or supplier
in a particular month in the NYSCS. Once subcontractor and supplier payments have been entered into the
NYSCS, the subcontractor(s) and supplier(s) will receive an email or fax notification advising them to log
into the NYSCS to confirm that they actually received the reported payments from the Contractor. It is the
Contractor’s responsibility to educate its MWBE subcontractors and suppliers about the NYSCS and the
need to confirm payments made to them in the NYSCS.
C.
To assist in the use of the NYSCS, OGS recommends that all Contractors and MWBE subcontractors and
suppliers sign up for the following two webinar trainings offered through the NYSCS: “
Introduction to the
System - Vendor training
” and “
Contract Compliance Reporting - Vendor Training
” to become familiar
with
the
NYSCS.
To
view
the
training
schedule
and
to
register
visit:
https://ny.newnycontracts.com/FrontEnd/TrainingList.asp
D.
As soon as possible after the Contract is approved, Contractor should visit https://ny.newnycontracts.com
and click on “
Vendor Account Lookup
” to identify the Contractor’s account by company name. Contact
information should be reviewed and updated if necessary by choosing “
Change Info
.” It is important that
the staff member who is responsible for reporting payment information for the Contractor be listed as a user
in the NYSCS. Users who are not already listed may be added through “
Request New User
.” When
identifying the person responsible, please add “
- MWBE Contact
” after his or her last name (i.e., John Doe
– MWBE Contact) to ensure that the correct person receives audit notices from the NYSCS. NYSCS
Technical Support should be contacted for any technical support questions by clicking on the links for
“
Contact Us & Support
” then “
Technical Support
” on the NYSCS website.
E.
If Contractor is unable to report MWBE Contractor Compliance via the NYSCS, Contractor must submit a
Monthly MWBE Contractor Compliance Report on Form MWBE 102 to OGS, by the 10th day of each month
during the term of the Contract, for the preceding month’s activity to: OGS OBD Office, 29
th
floor Corning
Tower, Empire State Plaza, Albany, NY 12242. Phone: 518-486-9284; Fax: 518-486-9285.
F.
It is the Contractor’s responsibility to report subcontractor and supplier payments. Failure to respond to
payment audits in a timely fashion through the NYSCS, or by paper to OGS, may jeopardize future
payments pursuant to the MWBE liquidated damages clause in clause IX below.
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IX. Breach of Contract and Liquidated Damages
A.
Where OGS determines that the Contractor is not in compliance with the MWBE requirements of this
Section, and the Contractor refuses to comply with such requirements, or if it is found to have willfully and
intentionally failed to comply with the MWBE participation goals set forth in the Contract, the Contractor
shall be obligated to pay liquidated damages to OGS.
B.
Such liquidated damages shall be calculated as an amount equaling the difference between:
1.
All sums identified for payment to MWBEs had the Contractor achieved the contractual MWBE goals; and
2.
All sums actually paid to MWBEs for work performed or materials supplied under the Contract.
C.
If OGS determines that Contractor is liable for liquidated damages and such identified sums have not been
withheld by OGS, Contractor shall pay such liquidated damages to OGS within sixty (60) days after they
are assessed. Provided, however, that if the Contractor has filed a complaint with the Director of the Division
of Minority and Women’s Business Development pursuant to 5 NYCRR § 142.12, liquidated damages shall
be payable only in the event of a determination adverse to the Contractor following the complaint process.
X. Fraud
Any suspicion of fraud, waste, or abuse involving the contracting or certification of MWBEs shall be immediately reported
to ESD’s Division of Minority and Women’s Business Development at (855) 373-4692.
ALL FORMS ARE AVAILABLE AT:
https://ogs.ny.gov/MWBE.
Vendor must scroll down to the section titled
COMMODITY & SERVICE CONTRACTS and use the appropriate forms under this section only.
2.21
PARTICIPATION OPPORTUNITIES FOR NEW YORK STATE CERTIFIED SERVICE-DISABLED
VETERAN OWNED BUSINESSES
Article 3 of the New York State Veterans’ Services Law provides for more meaningful participation in public procurement
by certified Service-Disabled Veteran-Owned Businesses (“SDVOB”), thereby further integrating such businesses into
New York State’s economy. OGS recognizes the need to promote the employment of service-disabled veterans and to
ensure that certified service-disabled veteran-owned businesses have opportunities for maximum feasible participation
in the performance of OGS contracts.
In recognition of the service and sacrifices made by service-disabled veterans and in recognition of their economic
activity in doing business in New York State, Bidders are expected to consider SDVOBs in the fulfillment of the
requirements of the Contract. Such participation may be as subcontractors or suppliers, as protégés, or in other
partnering or supporting roles.
I.
Contract Goals
A. OGS hereby establishes an overall goal of 3% for SDVOB participation, based on the current availability of qualified
SDVOBs. For purposes of providing meaningful participation by SDVOBs, the Bidder/Contractor should reference
the directory of New York State Certified SDVOBs found at: https://ogs.ny.gov/Veterans/. Questions regarding
compliance with SDVOB participation goals should be directed to the OGS Designated Contacts. Additionally,
following Contract execution, Contractor is encouraged to contact the Office of General Services’ Division of
Service-Disabled Veteran’s Business Development at 518-474-2015 or VeteransDevelopment@ogs.ny.gov to
discuss additional methods of maximizing participation by SDVOBs on the Contract.
B. Contractor must document “good faith efforts” to provide meaningful participation by SDVOBs as subcontractors or
suppliers in the performance of the Contract (see clause IV below).
II. SDVOB Utilization Plan
A. In accordance with 9 NYCRR § 252.2(i), Bidders are required to submit a completed SDVOB Utilization Plan on
Form SDVOB 100 with their bid.
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B. The Utilization Plan shall list the SDVOBs that the Bidder intends to use to perform the Contract, a description of
the work that the Bidder intends the SDVOB to perform to meet the goals on the Contract, the estimated dollar
amounts to be paid to an SDVOB, or, if not known, an estimate of the percentage of Contract work the SDVOB will
perform. By signing the Utilization Plan, the Bidder acknowledges that making false representations or providing
information that shows a lack of good faith as part of, or in conjunction with, the submission of a Utilization Plan is
prohibited by law and may result in penalties including, but not limited to, termination of a contract for cause, loss
of eligibility to submit future bids, and/or withholding of payments. Any modifications or changes to the agreed
participation by SDVOBs after the Contract award and during the term of the Contract must be reported on a revised
SDVOB Utilization Plan and submitted to OGS.
C
OGS will review the submitted SDVOB Utilization Plan and advise the Bidder/Contractor of OGS acceptance or
issue a notice of deficiency within 20 days of receipt.
D. If a notice of deficiency is issued, Bidder/Contractor agrees that it shall respond to the notice of deficiency, within
seven business days of receipt, by submitting to OGS a written remedy in response to the notice of deficiency. If
the written remedy that is submitted is not timely or is found by OGS to be inadequate, OGS shall notify the
Bidder/Contractor and direct the Bidder/Contractor to submit, within five business days of notification by OGS, a
request for a partial or total waiver of SDVOB participation goals on SDVOB 200. Failure to file the waiver form in
a timely manner may be grounds for disqualification of the bid or proposal
E. OGS may disqualify a Bidder’s bid or proposal as being non-responsive under the following circumstances:
(a)
If a Bidder fails to submit an SDVOB Utilization Plan;
(b)
If a Bidder fails to submit a written remedy to a notice of deficiency;
(c)
If a Bidder fails to submit a request for waiver; or
(d)
If OGS determines that the Bidder has failed to document good faith efforts.
F. If awarded a Contract, Contractor certifies that it will follow the submitted SDVOB Utilization Plan for the
performance of SDVOBs on the Contract pursuant to the prescribed SDVOB contract goals set forth above.
G. Contractor further agrees that a failure to use SDVOBs as agreed in the Utilization Plan shall constitute a material
breach of the terms of the Contract. Upon the occurrence of such a material breach, OGS shall be entitled to any
remedy provided herein, including but not limited to, a finding of Contractor non-responsibility.
III. Request For Waiver
A. Prior to submission of a request for a partial or total waiver, Bidder/Contractor shall speak to the Designated
Contacts at OGS for guidance
B. In accordance with 9 NYCRR § 252.2(m), a Bidder/Contractor that is able to document good faith efforts to meet
the goal requirements, as set forth in clause IV below, may submit a request for a partial or total waiver on Form
SDVOB 200, accompanied by supporting documentation. A Bidder may submit the request for waiver at the same
time it submits its SDVOB Utilization Plan. If a request for waiver is submitted with the SDVOB Utilization Plan and
is not accepted by OGS at that time, the provisions of clauses II (C), (D) & (E) will apply. If the documentation
included with the Bidder’s/Contractor’s waiver request is complete, OGS shall evaluate the request and issue a
written notice of acceptance or denial within 20 days of receipt.
C. Contractor shall attempt to utilize, in good faith, the SDVOBs identified within its SDVOB Utilization Plan, during the
performance of the Contract. Requests for a partial or total waiver of established goal requirements made
subsequent to Contract award may be made at any time during the term of the Contract to OGS, but must be made
no later than prior to the submission of a request for final payment on the Contract.
D. If OGS, upon review of the SDVOB Utilization Plan and Monthly SDVOB Compliance Report (SDVOB 101)
determines that Contractor is failing or refusing to comply with the contract goals and no waiver has been issued in
regard to such non-compliance, OGS may issue a notice of deficiency to the Contractor. The Contractor must
respond to the notice of deficiency within seven business days of receipt. Such response may include a request for
partial or total waiver of SDVOB contract goals.
Waiver requests should be sent to the individual listed on the front page of the OGS Contract Award Notification.
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IV. Required Good Faith Efforts
In accordance with 9 NYCRR § 252.2(n), Contractors must document their good faith efforts toward utilizing SDVOBs
on the Contract. Evidence of required good faith efforts shall include, but not be limited to, the following:
1. Copies of solicitations to SDVOBs and any responses thereto.
2. Explanation of the specific reasons each SDVOB that responded to Bidders/Contractors’ solicitation was
not selected.
3. Dates of any pre-bid, pre-award or other meetings attended by Contractor, if any, scheduled by OGS with
certified SDVOBs whom OGS determined were capable of fulfilling the SDVOB goals set in the Contract.
4. Information describing the specific steps undertaken to reasonably structure the Contract scope of work for
the purpose of subcontracting with, or obtaining supplies from, certified SDVOBs.
5. Other information deemed relevant to the waiver request.
V. Monthly SDVOB Contractor Compliance Report
In accordance with 9 NYCRR § 252.2(q), Contractor is required to report Monthly SDVOB Contractor Compliance to
OGS during the term of the Contract for the preceding month’s activity, documenting progress made towards achieving
the Contract SDVOB goals. This information must be submitted using form SDVOB 101 available at
https://ogs.ny.gov/veterans/ and should be completed by the Contractor and submitted to OGS, by the 10th day of each
month during the term of the Contract, for the preceding month’s activity to the individual listed on the front page of the
OGS Contract Award Notification.
VI. Breach of Contract and Damages
In accordance with 9 NYCRR § 252.2(s), any Contractor found to have willfully and intentionally failed to comply with
the SDVOB participation goals set forth in the Contract, shall be found to have breached the contract and Contractor
shall pay damages as set forth therein.
ALL FORMS ARE AVAILABLE UNDER AT: https://ogs.ny.gov/Veterans/
2.22
PROHIBITION ON CONTRACTING FOR CERTAIN TELECOMMUNICATIONS AND VIDEO
SURVEILLANCE SERVICES OR EQUIPMENT
In accordance with Section 889 of the National Defense Authorization Act (NDAA) for fiscal year 2019, under any Contract
or subcontract resulting from this Solicitation, Bidder or resultant Contractor or Subcontractor shall not provide to the State
or Authorized User any equipment, system, or service that uses covered telecommunications equipment or services, as
defined by the NDAA, as a substantial or essential component of any system, or as critical technology as part of any system,
unless an exception applies or the covered telecommunications equipment or services are covered by a waiver, as set forth
in the NDAA and the rules and regulations promulgated thereunder.
2.23
OVERLAPPING CONTRACT PRODUCTS
Products/services available under this Piggyback Contract may also be available from other New York State contracts.
Authorized Users will be advised to select the most cost-effective procurement alternative that meets their program
requirements, and to document the basis for this selection in the procurement record.
2.24
NEW YORK STATE VENDOR RESPONSIBILITY
The Contractor shall at all times during the Piggyback Contract term remain responsible. The Contractor agrees, if requested
by the Commissioner of OGS, to present evidence of its continuing legal authority to do business in New York State, integrity,
experience, ability, prior performance, and organizational and financial capacity.
The Commissioner of OGS, in his or her sole discretion, reserves the right to suspend any or all activities under this
Piggyback Contract, at any time, when he or she discovers information that calls into question the responsibility of the
Contractor. In the event of such suspension, the Contractor will be given written notice outlining the particulars of such
suspension. Upon issuance of such notice, the Contractor must comply with the terms of the suspension order. Activity
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under the Piggyback Contract may resume at such time as the Commissioner of OGS issues a written notice authorizing a
resumption of performance under the Piggyback Contract.
The Contractor agrees that if it is found by the State that Contractor’s responses to the Questionnaire were intentionally
false or intentionally incomplete, on such finding, the Commissioner may terminate the Piggyback Contract.
Upon written notice to the Contractor, and a reasonable opportunity to be heard with appropriate OGS officials or staff, the
Piggyback Contract may be terminated by the Commissioner of OGS at the Contractor’s expense where the Contractor is
determined by the Commissioner of OGS to be non-responsible. In such event, the Commissioner of OGS may complete
the contractual requirements in any manner he or she may deem advisable and pursue available legal or equitable remedies
for breach.
In no case shall such termination of the Piggyback Contract by the State be deemed a breach thereof, nor shall the State
be liable for any damages for lost profits or otherwise, which may be sustained by the Contractor as a result of such
termination.
2.25
NON-STATE AGENCIES PARTICIPATION IN CENTRALIZED CONTRACTS
New York State political subdivisions and others authorized by New York State law may participate in Centralized Contracts.
These include, but are not limited to, local governments, public authorities, public school and fire districts, public and
nonprofit libraries, and certain other nonpublic/nonprofit organizations. See Appendix B
Participation in Centralized
Contracts
. For Purchase Orders issued by the Port Authority of New York and New Jersey (or any other authorized entity
that may have delivery locations adjacent to New York State), the terms of the
Price
clause shall be modified to include
delivery to locations adjacent to New York State.
Upon request, all eligible non-State agencies must furnish Contractors with the proper tax exemption certificates and
documentation certifying eligibility to use State contracts. A list of categories of eligible entities is available on the OGS web
site (https://online.ogs.ny.gov/purchase/snt/othersuse.asp). Questions regarding an organization's eligibility to purchase
from New York State Contracts may also be directed to NYS Procurement Services Customer Services at 518-474-6717.
2.26
SUBCONTRACTING
The following requirements shall supplement the requirements of Appendix B,
Employees, Subcontractors and Agents
, and
Subcontractors and Suppliers
:
A. The Contractor shall not in any way be relieved of any responsibility under the Contract by any subcontract. The
Contractor shall be solely responsible to the State and Authorized User for the acts or defaults of its Subcontractor(s)
and of such Subcontractors' officers, agents, and employees, each of whom shall for this purpose, be deemed to be
the agent or employee of the Contractor to the extent of its subcontract. Any Deliverable provided or furnished by a
Subcontractor shall be deemed for purposes of the Contract to be provided or furnished by the Contractor.
B. The Contractor shall inform each Subcontractor fully and completely of all provisions and requirements of the Contract,
including (1) those relating either directly or indirectly to the Deliverables to be provided and the materials to be furnished
or services provided pursuant to its respective subcontract, (2) to maintain and protect against any unauthorized
disclosure of records with respect to work performed under the subcontract in the same manner as required of the
Contractor, (3) those relating to the State’s rights to audit records and (4) to cooperate with any investigation, audit, or
other inquiry related to the Contract or any litigation relating thereto. Contractor agrees that every such subcontract
shall expressly stipulate that all labor performed and materials furnished pursuant thereto shall strictly comply with the
requirements of the Contract the Authorized User Agreement and that no subcontract shall impair the rights of the State
or Authorized User or create any contractual relationship between the Subcontractor and the State or Authorized User.
C. The Contractor shall pay all Subcontractors for and on account of services and/or Deliverables provided by such
Subcontractors in accordance with the terms of their respective subcontracts. If and when required by the State or
Authorized User, the Contractor shall submit satisfactory evidence that it has made such payment.
D. The Contractor shall require that the Subcontractor must pass through all terms and conditions of the Contract, including
but not limited to Appendix A, to any lower tier Subcontractors.
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2.27
NEW ACCOUNTS
Contractor may ask State Agencies and other Authorized Users to provide information in order to facilitate the opening of a
customer account, including documentation of eligibility to use New York State Contracts, agency code, name, address,
and contact person. State Agencies shall not be required to provide credit references.
2.28
CONTRACT MODIFICATIONS
A. Piggyback Contract Modifications
Any modifications to this Piggyback Contract, must be made by an instrument in writing executed by the Parties,
and subject to approval by OSC.
B. Master Contract Modifications
Contractor shall submit copies of any modifications to the Master Contract terms and conditions to OGS for review
prior to enactment. Subject to approval by OSC, if required, OGS may accept a modification to the Master Contract
in full. If the Master Contract modification requires a modification to this Contract, it shall be made in accordance
with Paragraph A above. See Section 2.5
Price and Product Updates
above, for modifications to the Master Contract
pricelist.
C. Authorized Users
An Authorized User shall not have the authority to accept any requests for modifications to the Piggyback Contract,
which must be handled as outlined in Paragraph A of this section. However, in accordance with Appendix B
Modification of Contract Terms
, in a specific transaction an Authorized User shall have the authority to accept an
offer from Contractor for more advantageous terms and pricing than those provided under this Piggyback Contract.
2.29
CONTRACT DOCUMENTS; ELECTRONIC FORMAT
OGS encourages Contractor to submit all documents to OGS in an electronic format, including electronic copies of
documents with original signatures. Documents requested by OGS should be submitted in the format specified by OGS.
Contractor is responsible for retaining the original documents with original signatures that have been scanned and submitted
electronically for the term of the contract and any extensions thereof, and for a period of six (6) years after the term of the
contract has ended. Contractor shall submit such documents with original signatures to OGS upon request. If Contractor
seeks to assign the contract during the term, Contractor shall provide all documents relating to the bid and contract that it
has retained to the successor Contractor (assignee) upon OGS consent to the assignment.
2.30
MASTER CONTRACT TERMS
The following sections of the Master Contract shall not apply to this Piggyback Contract and shall be replaced with the
corresponding terms included in the Piggyback Contract, Appendix A -
Standard Clauses for NYS Contracts
(June 2023)
and Appendix B -
General Specifications
(April 2016): Section 14.7 –
Assignment
; Section 14.15 –
Governing Law
; Section
14.16 –
Jurisdiction & Venue
; Section 14.17 –
Attorneys’ Fees
; and Section 14.22 –
Electronic Signatures
. All references
to governing law within the Master Contract shall, for purposes of this Piggyback Contract, be governed by Paragraph 14 –
Governing Law
of Appendix A -
Standard Clauses for NYS Contracts
(June 2023). References to Enterprise Services shall
be replaced with OGS when applying Master Contract terms to this Piggyback Contract, where appropriate.
2.31
EMPLOYEE INFORMATION REQUIRED TO BE REPORTED BY CERTAIN CONSULTANT
CONTRACTORS AND SERVICE CONTRACTORS
Civil Service Law § 97 and State Finance Law § 163 establish reporting requirements for maintaining certain information
concerning Contract Employees working under State Agency service and consulting Contracts. State Agency consultant
Contracts are defined as “Contracts entered into by a state Agency for analysis, evaluation, research, training, data
processing, computer programming, engineering, environmental health and mental health services, accounting, auditing,
paralegal, legal, or similar services” (“covered consultant Contract” or “covered consultant services”). The information must
be provided to the state Agency awarding such Contracts, OSC, DOB and CS. To meet these requirements, the Contractor
agrees to complete:
A.
Form A - Contractor’s Planned Employment Form
, if required. Note: State Agencies are required to furnish
this information but may require a Contractor to submit the information.
B.
Form B - Contractor’s Annual Employment Report
. Throughout the term of the Contract, by May 15th of
each year, the Contractor agrees to report the following information to the State Agency awarding the Contract,
or if the Contractor has provided Contract Employees pursuant to a Centralized Contract, such report must be
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made to the State Agency purchasing from such Contract. For each covered consultant Contract in effect at
any time between the preceding April 1st through March 31st fiscal year or for the period of time such Contract
was in effect during such prior State fiscal year, Contractor reports the:
1. Total number of Employees employed to provide the consultant services, by employment category.
2. Total number of hours worked by such Employees.
3. Total compensation paid to all Employees that performed consultant services under such Contract.*
*
NOTE
: The information to be reported is applicable only to those Employees who are directly providing services or directly
performing covered consultant services. However, such information shall also be provided relative to Employees of
Subcontractors who perform any part of the service Contract or any part of the covered consultant Contract. This information
does not have to be collected and reported in circumstances where there is ancillary involvement of an Employee in a
clerical, support, organizational or other administrative capacity.
Contractor agrees to simultaneously report such information to The Department of Civil Service (CS) and OSC as
designated below:
Department of Civil Service
Office of the State Comptroller
Alfred E. Smith State Office Building
Bureau of Contracts
Albany, NY 12239
110 State St., 11th Floor
Albany, New York
Attn: Consultant Reporting
Fax: (518) 474-8030 or (518) 473-8808
Contractor is advised herein and understands that this information is available for public inspection and copying pursuant
to §87 of the New York State Public Officers Law (Freedom of Information Law). In the event individual Employee names
or social security numbers are set forth on a document, the State Agency making such disclosure is obligated to redact both
the name and social security number prior to disclosure. Further information is available in Section XI.18.C of the Office of
the State Comptroller’s Guide to Financial Operations (http://www.osc.state.ny.us/agencies/guide/MyWebHelp/),
“Consultant Disclosure Legislation.”
2.31.1 INSTRUCTIONS FOR COMPLETING FORM A AND B
Form A and Form B should be completed for Contracts for consulting services in accordance with Section XI.18.C of
the
Office
of
the
State
Comptroller’s
Guide
to
Financial
Operations
(http://www.osc.state.ny.us/agencies/guide/MyWebHelp/), “Consultant Disclosure Legislation,” and the following:
A. Form A - Contractor’s Planned Employment Form
(available from and submitted to the using Agency, if
necessary.) (Form AC-3271-S:
http://www.osc.state.ny.us/agencies/forms/index.htm
)
B. Form B - Contractor’s Annual Employment Report
(to be completed by May 15th of each year for each
consultant Contract in effect at any time between the preceding April 1st through March 31st fiscal year and
submitted
to
the
CS,
OSC
and
procuring
Agency.)
(Form
AC-3272-S:
http://www.osc.state.ny.us/agencies/forms/index.htm)
Scope of Contract
: choose a general classification of the single category that best fits the predominate nature of
the services provided under the Contract.
Employment Category
: enter the specific occupation(s), as listed in the O*NET occupational classification system,
which best describes the Employees providing services under the Contract. (Note: Access the O*NET database,
which is available through the US Department of Labor’s Employment and Training Administration, on-line at
online.onetcenter.org to find a list of occupations.)
Number of Employees
: enter the total number of Employees in the employment category employed to provide
services under the Contract during the report period, including part time Employees and Employees of
subcontractors.
Number of Hours
: enter the total number of hours worked during the report period by the Employees in the
employment category.
Amount Payable under the Contract
: enter the total amount paid by the State to the State Contractor under the
Contract, for work by the Employees in the employment category, for services provided during the report period.
GROUP 71022, Award PGB-23355 – BUSINESS CONSULTING SERVICES
Contract_ Deloitte Consulting LLP
Page 17
3.
GENERAL PROVISIONS
3.1
NOTICES
Unless otherwise provided in the Contract, notices, demands, designations, certificates, requests, offers, consents,
approvals, and other instruments (“Notices”) given pursuant to this Contract shall be in writing to the Parties’ respective
representative and shall be validly given when e-mailed, mailed by registered or certified mail, or hand delivered.
The Parties may, from time to time, specify any address for purpose of notices under this Contract by giving fifteen (15)
days written notice to the other party. The Parties agree to mutually designate individuals as their respective representatives
for purposes of this Contract. Contact information for the designated individuals will be set forth on the Contract Award
Notification (CAN) and on the Contractor Information page for this Contract, which will be posted on the OGS website.
3.2
CAPTIONS
The captions contained in this Piggyback Contract are intended for convenience and reference purposes only and shall in
no way be deemed to define or limit any provision thereof.
3.3
SEVERABILITY
If any provision of this Piggyback Contract is deemed invalid or unenforceable, such determination shall have no effect on
the balance of the Piggyback Contract, which shall be enforced and interpreted as if such provision was never included in
the Piggyback Contract.
3.4
COUNTERPARTS
This Piggyback Contract may be executed in one or more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute the same Contract. Any signature page of any such counterpart may be attached
or appended to any counterpart to complete a fully executed counterpart of this Contract, and shall bind such party.
3.5
ENTIRE AGREEMENT
This Piggyback Contract and the referenced appendices and attachments constitute the entire agreement between the
Parties hereto and no statement, promise, condition, understanding, inducement or representation, oral or written,
expressed or implied, which is not contained herein shall be binding or valid, and the Piggyback Contract shall not be
changed, modified or altered in any manner except as provided in Section 2.28 of this Piggyback Contract,
Contract
Modifications
.
(Page 18 of 19)
APPROVED
DEPT. OF AUDIT & CONTROL
Jan 24 2025
Brian Fuller
FOR THE STATE COMPTROLLER
GROUP 71022, Award PGB-23355 -
BUSINESS CONSUL TING SERVICES
INDIVIDUAL, CORPORATION, PARTNERSHIP, OR LLC ACKNOWLEDGMENT
STATE
OF
__
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____
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COUNTY
OF_~_;('_-f_i_,e\_J_\
__
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On the
·1~
day
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in
the year
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, before me personally appeared
__
_,.b
...
o..__a.v_i_J
___
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__
~_f5_v_·c_·-t__·
________
_,,
known to me to
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instrument, who, being duly sworn by me did depose and say that _he maintains an office at
a\\.~"=+
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and further that:
[Che~One]
(0
if
an
individual):
_he executed the foregoing instrument
in
his/her name and on his/her own behalf.
(0
If
a corporation):
_he is the
of
________________
, the corporation described
in
said instrument; that, by authority
of
the
Board
of
Directors of said corporation, _he is authorized to execute the foregoing instrument
on
behalf
of
the corporation
for purposes set forth therein; and that, pursuant to that authority, _he executed the foregoing instrument
in
the name
of
and
on
behalf
of
said corporation as the act and deed
of
said corporation.
(~
If a partnership):
_he is the
PR11Jc/vtH/
of
l)[L(;
1
fTt
C
v
/vi
v\,{/
11
&-
LL-
;l
,
the partnership described
in
said instrument; that, by the terms
of
said
partnership, _he is authorized to execute the foregoing instrument
on
behalf
of
the partnership for purposes set forth
therein; and that, pursuant to that authority, _he executed the foregoing instrument
in
the name
of
and
on
behalf
of
said
partnership as the act and deed
of
said partnership.
(D
If a limited liability company):
_he is a duly authorized member
of
______________
_
________________
, LLC, the limited liability company described in said instrument; that,
_he
is
authorized to execute the foregoing instrument
on
behalf
of
the limited liability company for purposes set forth
therein; and that, pursuant to that authority, _he executed the foregoing instrument
in
the name of and
on
behalf
of
said
limited liability company as the act and deed
of
said limited liability company.
Contract_ Deloitte Consulting LLP
Page
19
June 2023
APPENDIX A
STANDARD CLAUSES FOR NEW YORK STATE CONTRACTS
PLEASE RETAIN THIS DOCUMENT
FOR FUTURE REFERENCE.
STANDARD CLAUSES FOR NYS CONTRACTS
APPENDIX A
Page 2
June 2023
TABLE OF CONTENTS
Page
1.
Executory Clause
3
2.
Non-Assignment Clause
3
3.
Comptroller’s Approval
3
4.
Workers’ Compensation Benefits
3
5.
Non-Discrimination Requirements
3
6.
Wage and Hours Provisions
3-4
7.
Non-Collusive Bidding Certification
4
8.
International Boycott Prohibition
4
9.
Set-Off Rights
4
10.
Records
4
11.
Identifying Information and Privacy Notification
4
12.
Equal Employment Opportunities For Minorities and Women
5
13.
Conflicting Terms
5
14.
Governing Law
5
15.
Late Payment
5
16.
No Arbitration
5
17.
Service of Process
5
18.
Prohibition on Purchase of Tropical Hardwoods
5-6
19.
MacBride Fair Employment Principles
6
20.
Omnibus Procurement Act of 1992
6
21.
Reciprocity and Sanctions Provisions
6
22.
Compliance with Breach Notification and Data Security Laws
6
23.
Compliance with Consultant Disclosure Law
6
24.
Procurement Lobbying
7
25.
Certification of Registration to Collect Sales and Compensating Use Tax by Certain
7
State Contractors, Affiliates and Subcontractors
26.
Iran Divestment Act
7
27.
Admissibility of Contract
7
STANDARD CLAUSES FOR NYS CONTRACTS
APPENDIX A
Page 3
June 2023
STANDARD CLAUSES FOR NYS CONTRACTS
The parties to the attached contract, license, lease, amendment
or other agreement of any kind (hereinafter, “the contract” or
“this contract”) agree to be bound by the following clauses
which are hereby made a part of the contract (the word
“Contractor” herein refers to any party other than the State,
whether a contractor, licenser, licensee, lessor, lessee or any
other party):
1. EXECUTORY CLAUSE.
In accordance with Section 41
of the State Finance Law, the State shall have no liability under
this contract to the Contractor or to anyone else beyond funds
appropriated and available for this contract.
2. NON-ASSIGNMENT CLAUSE.
In accordance with
Section 138 of the State Finance Law, this contract may not be
assigned by the Contractor or its right, title or interest therein
assigned, transferred, conveyed, sublet or otherwise disposed of
without the State’s previous written consent, and attempts to do
so are null and void. Notwithstanding the foregoing, such prior
written consent of an assignment of a contract let pursuant to
Article XI of the State Finance Law may be waived at the
discretion of the contracting agency and with the concurrence
of the State Comptroller where the original contract was subject
to the State Comptroller’s approval, where the assignment is
due to a reorganization, merger or consolidation of the
Contractor’s business entity or enterprise. The State retains its
right to approve an assignment and to require that any
Contractor demonstrate its responsibility to do business with
the State. The Contractor may, however, assign its right to
receive payments without the State’s prior written consent
unless this contract concerns Certificates of Participation
pursuant to Article 5-A of the State Finance Law.
3. COMPTROLLER’S APPROVAL.
In accordance with
Section 112 of the State Finance Law, if this contract exceeds
$50,000 (or $75,000 for State University of New York or City
University of New York contracts for goods, services,
construction and printing, and $150,000 for State University
Health Care Facilities) or if this is an amendment for any
amount to a contract which, as so amended, exceeds said
statutory amount, or if, by this contract, the State agrees to give
something other than money when the value or reasonably
estimated value of such consideration exceeds $25,000, it shall
not be valid, effective or binding upon the State until it has been
approved by the State Comptroller and filed in his office.
Comptroller’s approval of contracts let by the Office of General
Services, either for itself or its customer agencies by the Office
of General Services Business Services Center, is required when
such contracts exceed $85,000. Comptroller’s approval of
contracts established as centralized contracts through the Office
of General Services is required when such contracts exceed
$125,000, and when a purchase order or other procurement
transaction issued under such centralized contract exceeds
$200,000.
4.
WORKERS’
COMPENSATION
BENEFITS.
In
accordance with Section 142 of the State Finance Law, this
contract shall be void and of no force and effect unless the
Contractor shall provide and maintain coverage during the life
of this contract for the benefit of such employees as are required
to be covered by the provisions of the Workers’ Compensation
Law.
5. NON-DISCRIMINATION REQUIREMENTS.
To the
extent required by Article 15 of the Executive Law (also known
as the Human Rights Law) and all other State and Federal
statutory and constitutional non-discrimination provisions, the
Contractor will not discriminate against any employee or
applicant for employment, nor subject any individual to
harassment, because of age, race, creed, color, national origin,
citizenship or immigration status, sexual orientation, gender
identity or expression, military status, sex, disability,
predisposing genetic characteristics, familial status, marital
status, or domestic violence victim status or because the
individual has opposed any practices forbidden under the
Human Rights Law or has filed a complaint, testified, or
assisted in any proceeding under the Human Rights Law.
Furthermore, in accordance with Section 220-e of the Labor
Law, if this is a contract for the construction, alteration or repair
of any public building or public work or for the manufacture,
sale or distribution of materials, equipment or supplies, and to
the extent that this contract shall be performed within the State
of New York, Contractor agrees that neither it nor its
subcontractors shall, by reason of race, creed, color, disability,
sex, or national origin: (a) discriminate in hiring against any
New York State citizen who is qualified and available to
perform the work; or (b) discriminate against or intimidate any
employee hired for the performance of work under this contract.
If this is a building service contract as defined in Section 230 of
the Labor Law, then, in accordance with Section 239 thereof,
Contractor agrees that neither it nor its subcontractors shall by
reason of race, creed, color, national origin, age, sex or
disability: (a) discriminate in hiring against any New York
State citizen who is qualified and available to perform the work;
or (b) discriminate against or intimidate any employee hired for
the performance of work under this contract. Contractor is
subject to fines of $50.00 per person per day for any violation
of Section 220-e or Section 239 as well as possible termination
of this contract and forfeiture of all moneys due hereunder for
a second or subsequent violation.
6. WAGE AND HOURS PROVISIONS.
If this is a public
work contract covered by Article 8 of the Labor Law or a
building service contract covered by Article 9 thereof, neither
Contractor’s employees nor the employees of its subcontractors
may be required or permitted to work more than the number of
hours or days stated in said statutes, except as otherwise
provided in the Labor Law and as set forth in prevailing wage
and supplement schedules issued by the State Labor
Department. Furthermore, Contractor and its subcontractors
must pay at least the prevailing wage rate and pay or provide
the prevailing supplements, including the premium rates for
overtime pay, as determined by the State Labor Department in
STANDARD CLAUSES FOR NYS CONTRACTS
APPENDIX A
Page 4
June 2023
accordance with the Labor Law. Additionally, effective April
28, 2008, if this is a public work contract covered by Article 8
of the Labor Law, the Contractor understands and agrees that
the filing of payrolls in a manner consistent with Subdivision 3-
a of Section 220 of the Labor Law shall be a condition precedent
to payment by the State of any State approved sums due and
owing for work done upon the project.
7. NON-COLLUSIVE BIDDING CERTIFICATION.
In
accordance with Section 139-d of the State Finance Law, if this
contract was awarded based upon the submission of bids,
Contractor affirms, under penalty of perjury, that its bid was
arrived at independently and without collusion aimed at
restricting competition. Contractor further affirms that, at the
time Contractor submitted its bid, an authorized and responsible
person executed and delivered to the State a non-collusive
bidding certification on Contractor’s behalf.
8. INTERNATIONAL BOYCOTT PROHIBITION.
In
accordance with Section 220-f of the Labor Law and Section
139-h of the State Finance Law, if this contract exceeds $5,000,
the Contractor agrees, as a material condition of the contract,
that neither the Contractor nor any substantially owned or
affiliated person, firm, partnership or corporation has
participated, is participating, or shall participate in an
international boycott in violation of the federal Export
Administration Act of 1979 (50 USC App. Sections 2401 et
seq.) or regulations thereunder. If such Contractor, or any of
the aforesaid affiliates of Contractor, is convicted or is
otherwise found to have violated said laws or regulations upon
the final determination of the United States Commerce
Department or any other appropriate agency of the United
States subsequent to the contract’s execution, such contract,
amendment or modification thereto shall be rendered forfeit and
void. The Contractor shall so notify the State Comptroller
within five (5) business days of such conviction, determination
or disposition of appeal (2 NYCRR § 105.4).
9. SET-OFF RIGHTS.
The State shall have all of its common
law, equitable and statutory rights of set-off. These rights shall
include, but not be limited to, the State’s option to withhold for
the purposes of set-off any moneys due to the Contractor under
this contract up to any amounts due and owing to the State with
regard to this contract, any other contract with any State
department or agency, including any contract for a term
commencing prior to the term of this contract, plus any amounts
due and owing to the State for any other reason including,
without limitation, tax delinquencies, fee delinquencies or
monetary penalties relative thereto. The State shall exercise its
set-off rights in accordance with normal State practices
including, in cases of set-off pursuant to an audit, the
finalization of such audit by the State agency, its
representatives, or the State Comptroller.
10. RECORDS.
The Contractor shall establish and maintain
complete and accurate books, records, documents, accounts and
other evidence directly pertinent to performance under this
contract (hereinafter, collectively, the “Records”). The Records
must be kept for the balance of the calendar year in which they
were made and for six (6) additional years thereafter. The State
Comptroller, the Attorney General and any other person or
entity authorized to conduct an examination, as well as the
agency or agencies involved in this contract, shall have access
to the Records during normal business hours at an office of the
Contractor within the State of New York or, if no such office is
available, at a mutually agreeable and reasonable venue within
the State, for the term specified above for the purposes of
inspection, auditing and copying. The State shall take
reasonable steps to protect from public disclosure any of the
Records which are exempt from disclosure under Section 87 of
the Public Officers Law (the “Statute”) provided that: (i) the
Contractor shall timely inform an appropriate State official, in
writing, that said records should not be disclosed; and (ii) said
records shall be sufficiently identified; and (iii) designation of
said records as exempt under the Statute is reasonable. Nothing
contained herein shall diminish, or in any way adversely affect,
the State’s right to discovery in any pending or future litigation.
11. IDENTIFYING INFORMATION AND PRIVACY
NOTIFICATION.
(a) Identification Number(s). Every
invoice or New York State Claim for Payment submitted to a
New York State agency by a payee, for payment for the sale of
goods or services or for transactions (e.g., leases, easements,
licenses, etc.) related to real or personal property must include
the payee’s identification number. The number is any or all of
the following: (i) the payee’s Federal employer identification
number, (ii) the payee’s Federal social security number, and/or
(iii) the payee’s Vendor Identification Number assigned by the
Statewide Financial System. Failure to include such number or
numbers may delay payment. Where the payee does not have
such number or numbers, the payee, on its invoice or Claim for
Payment, must give the reason or reasons why the payee does
not have such number or numbers.
(b) Privacy Notification. (1) The authority to request the above
personal information from a seller of goods or services or a
lessor of real or personal property, and the authority to maintain
such information, is found in Section 5 of the State Tax Law.
Disclosure of this information by the seller or lessor to the State
is mandatory. The principal purpose for which the information
is collected is to enable the State to identify individuals,
businesses and others who have been delinquent in filing tax
returns or may have understated their tax liabilities and to
generally identify persons affected by the taxes administered by
the Commissioner of Taxation and Finance. The information
will be used for tax administration purposes and for any other
purpose authorized by law. (2) The personal information is
requested by the purchasing unit of the agency contracting to
purchase the goods or services or lease the real or personal
property covered by this contract or lease. The information is
maintained in the Statewide Financial System by the Vendor
Management Unit within the Bureau of State Expenditures,
Office of the State Comptroller, 110 State Street, Albany, New
York 12236.
STANDARD CLAUSES FOR NYS CONTRACTS
APPENDIX A
Page 5
June 2023
12. EQUAL EMPLOYMENT OPPORTUNITIES FOR
MINORITIES AND WOMEN.
In accordance with Section
312 of the Executive Law and 5 NYCRR Part 143, if this
contract is: (i) a written agreement or purchase order
instrument, providing for a total expenditure in excess of
$25,000.00, whereby a contracting agency is committed to
expend or does expend funds in return for labor, services,
supplies, equipment, materials or any combination of the
foregoing, to be performed for, or rendered or furnished to the
contracting agency; or (ii) a written agreement in excess of
$100,000.00 whereby a contracting agency is committed to
expend or does expend funds for the acquisition, construction,
demolition, replacement, major repair or renovation of real
property and improvements thereon; or (iii) a written agreement
in excess of $100,000.00 whereby the owner of a State assisted
housing project is committed to expend or does expend funds
for the acquisition, construction, demolition, replacement,
major repair or renovation of real property and improvements
thereon for such project, then the following shall apply and by
signing this agreement the Contractor certifies and affirms that
it is Contractor’s equal employment opportunity policy that:
(a) The Contractor will not discriminate against employees or
applicants for employment because of race, creed, color,
national origin, sex, age, disability or marital status, shall make
and document its conscientious and active efforts to employ and
utilize minority group members and women in its work force
on State contracts and will undertake or continue existing
programs of affirmative action to ensure that minority group
members and women are afforded equal employment
opportunities without discrimination. Affirmative action shall
mean recruitment, employment, job assignment, promotion,
upgradings, demotion, transfer, layoff, or termination and rates
of pay or other forms of compensation;
(b) at the request of the contracting agency, the Contractor shall
request each employment agency, labor union, or authorized
representative of workers with which it has a collective
bargaining or other agreement or understanding, to furnish a
written statement that such employment agency, labor union or
representative will not discriminate on the basis of race, creed,
color, national origin, sex, age, disability or marital status and
that such union or representative will affirmatively cooperate in
the implementation of the Contractor’s obligations herein; and
(c) the Contractor shall state, in all solicitations or
advertisements for employees, that, in the performance of the
State contract, all qualified applicants will be afforded equal
employment opportunities without discrimination because of
race, creed, color, national origin, sex, age, disability or marital
status.
Contractor will include the provisions of “(a), (b) and (c)”
above, in every subcontract over $25,000.00 for the
construction,
demolition,
replacement,
major
repair,
renovation, planning or design of real property and
improvements thereon (the “Work”) except where the Work is
for the beneficial use of the Contractor. Section 312 does not
apply to: (i) work, goods or services unrelated to this contract;
or (ii) employment outside New York State. The State shall
consider compliance by a contractor or subcontractor with the
requirements of any federal law concerning equal employment
opportunity which effectuates the purpose of this clause. The
contracting agency shall determine whether the imposition of
the requirements of the provisions hereof duplicate or conflict
with any such federal law and if such duplication or conflict
exists, the contracting agency shall waive the applicability of
Section 312 to the extent of such duplication or conflict.
Contractor will comply with all duly promulgated and lawful
rules and regulations of the Department of Economic
Development’s Division of Minority and Women’s Business
Development pertaining hereto.
13. CONFLICTING TERMS.
In the event of a conflict
between the terms of the contract (including any and all
attachments thereto and amendments thereof) and the terms of
this Appendix A, the terms of this Appendix A shall control.
14. GOVERNING LAW.
This contract shall be governed by
the laws of the State of New York except where the Federal
supremacy clause requires otherwise.
15. LATE PAYMENT.
Timeliness of payment and any
interest to be paid to Contractor for late payment shall be
governed by Article 11-A of the State Finance Law to the extent
required by law.
16. NO ARBITRATION.
Disputes involving this contract,
including the breach or alleged breach thereof, may not be
submitted to binding arbitration (except where statutorily
authorized), but must, instead, be heard in a court of competent
jurisdiction of the State of New York.
17. SERVICE OF PROCESS.
In addition to the methods of
service allowed by the State Civil Practice Law & Rules
(“CPLR”), Contractor hereby consents to service of process
upon it by registered or certified mail, return receipt requested.
Service hereunder shall be complete upon Contractor’s actual
receipt of process or upon the State’s receipt of the return
thereof by the United States Postal Service as refused or
undeliverable. Contractor must promptly notify the State, in
writing, of each and every change of address to which service
of process can be made. Service by the State to the last known
address shall be sufficient. Contractor will have thirty (30)
calendar days after service hereunder is complete in which to
respond.
18. PROHIBITION ON PURCHASE OF TROPICAL
HARDWOODS.
The Contractor certifies and warrants that all
wood products to be used under this contract award will be in
accordance with, but not limited to, the specifications and
provisions of Section 165 of the State Finance Law, (Use of
Tropical Hardwoods) which prohibits purchase and use of
tropical hardwoods, unless specifically exempted, by the State
or any governmental agency or political subdivision or public
benefit corporation. Qualification for an exemption under this
STANDARD CLAUSES FOR NYS CONTRACTS
APPENDIX A
Page 6
June 2023
law will be the responsibility of the contractor to establish to
meet with the approval of the State.
In addition, when any portion of this contract involving the use
of woods, whether supply or installation, is to be performed by
any subcontractor, the prime Contractor will indicate and
certify in the submitted bid proposal that the subcontractor has
been informed and is in compliance with specifications and
provisions regarding use of tropical hardwoods as detailed in
§ 165 State Finance Law. Any such use must meet with the
approval of the State; otherwise, the bid may not be considered
responsive. Under bidder certifications, proof of qualification
for exemption will be the responsibility of the Contractor to
meet with the approval of the State.
19. MACBRIDE FAIR EMPLOYMENT PRINCIPLES.
In
accordance with the MacBride Fair Employment Principles
(Chapter 807 of the Laws of 1992), the Contractor hereby
stipulates that the Contractor either (a) has no business
operations in Northern Ireland, or (b) shall take lawful steps in
good faith to conduct any business operations in Northern
Ireland in accordance with the MacBride Fair Employment
Principles (as described in Section 165 of the New York State
Finance Law), and shall permit independent monitoring of
compliance with such principles.
20. OMNIBUS PROCUREMENT ACT OF 1992.
It is the
policy of New York State to maximize opportunities for the
participation of New York State business enterprises, including
minority- and women-owned business enterprises as bidders,
subcontractors and suppliers on its procurement contracts.
Information on the availability of New York State
subcontractors and suppliers is available from:
NYS Department of Economic Development
Division for Small Business and Technology Development
625 Broadway
Albany, New York 12245
Telephone: 518-292-5100
A directory of certified minority- and women-owned business
enterprises is available from:
NYS Department of Economic Development
Division of Minority and Women’s Business Development
633 Third Avenue 33rd Floor
New York, NY 10017
646-846-7364
email:
mwbebusinessdev@esd.ny.gov
https://ny.newnycontracts.com/FrontEnd/searchcertifieddir
ectory.asp
The Omnibus Procurement Act of 1992 (Chapter 844 of the
Laws of 1992, codified in State Finance Law § 139-i and Public
Authorities Law § 2879(3)(n)–(p)) requires that by signing this
bid proposal or contract, as applicable, Contractors certify that
whenever the total bid amount is greater than $1 million:
(a) The Contractor has made reasonable efforts to encourage
the participation of New York State Business Enterprises as
suppliers and subcontractors, including certified minority- and
women-owned business enterprises, on this project, and has
retained the documentation of these efforts to be provided upon
request to the State;
(b) The Contractor has complied with the Federal Equal
Opportunity Act of 1972 (P.L. 92-261), as amended;
(c) The Contractor agrees to make reasonable efforts to provide
notification to New York State residents of employment
opportunities on this project through listing any such positions
with the Job Service Division of the New York State
Department of Labor, or providing such notification in such
manner as is consistent with existing collective bargaining
contracts or agreements. The Contractor agrees to document
these efforts and to provide said documentation to the State
upon request; and
(d) The Contractor acknowledges notice that the State may seek
to obtain offset credits from foreign countries as a result of this
contract and agrees to cooperate with the State in these efforts.
21. RECIPROCITY AND SANCTIONS PROVISIONS.
Bidders are hereby notified that if their principal place of
business is located in a country, nation, province, state or
political subdivision that penalizes New York State vendors,
and if the goods or services they offer will be substantially
produced or performed outside New York State, the Omnibus
Procurement Act 1994 and 2000 amendments (Chapter 684 and
Chapter 383, respectively, codified in State Finance Law
§ 165(6) and Public Authorities Law § 2879(5)) require that
they be denied contracts which they would otherwise obtain.
NOTE: As of May 2023, the list of discriminatory jurisdictions
subject to this provision includes the states of South Carolina,
Alaska, West Virginia, Wyoming, Louisiana and Hawaii.
22. COMPLIANCE WITH BREACH NOTIFICATION
AND DATA SECURITY LAWS.
Contractor shall comply
with the provisions of the New York State Information Security
Breach and Notification Act (General Business Law §§ 899-aa
and 899-bb and State Technology Law § 208).
23.
COMPLIANCE
WITH
CONSULTANT
DISCLOSURE LAW.
If this is a contract for consulting
services, defined for purposes of this requirement to include
analysis, evaluation, research, training, data processing,
computer programming, engineering, environmental, health,
and mental health services, accounting, auditing, paralegal,
legal or similar services, then, in accordance with Section 163
(4)(g) of the State Finance Law (as amended by Chapter 10 of
the Laws of 2006), the Contractor shall timely, accurately and
properly comply with the requirement to submit an annual
employment report for the contract to the agency that awarded
the contract, the Department of Civil Service and the State
Comptroller.
STANDARD CLAUSES FOR NYS CONTRACTS
APPENDIX A
Page 7
June 2023
24. PROCUREMENT LOBBYING.
To the extent this
agreement is a “procurement contract” as defined by State
Finance Law §§ 139-j and 139-k, by signing this agreement the
contractor certifies and affirms that all disclosures made in
accordance with State Finance Law §§ 139-j and 139-k are
complete, true and accurate. In the event such certification is
found to be intentionally false or intentionally incomplete, the
State may terminate the agreement by providing written
notification to the Contractor in accordance with the terms of
the agreement.
25.
CERTIFICATION
OF
REGISTRATION
TO
COLLECT SALES AND COMPENSATING USE TAX BY
CERTAIN STATE CONTRACTORS, AFFILIATES AND
SUBCONTRACTORS.
To the extent this agreement is a contract as defined by Tax Law
§ 5-a, if the contractor fails to make the certification required
by Tax Law § 5-a or if during the term of the contract, the
Department of Taxation and Finance or the covered agency, as
defined by Tax Law § 5-a, discovers that the certification, made
under penalty of perjury, is false, then such failure to file or
false certification shall be a material breach of this contract and
this contract may be terminated, by providing written
notification to the Contractor in accordance with the terms of
the agreement, if the covered agency determines that such
action is in the best interest of the State.
26
.
IRAN DIVESTMENT ACT.
By entering into this
Agreement, Contractor certifies in accordance with State
Finance Law § 165-a that it is not on the “Entities Determined
to be Non-Responsive Bidders/Offerers pursuant to the New
York State Iran Divestment Act of 2012” (“Prohibited Entities
List”) posted at:
https://ogs.ny.gov/iran-divestment-act-2012
Contractor further certifies that it will not utilize on this
Contract any subcontractor that is identified on the Prohibited
Entities List. Contractor agrees that should it seek to renew or
extend this Contract, it must provide the same certification at
the time the Contract is renewed or extended. Contractor also
agrees that any proposed Assignee of this Contract will be
required to certify that it is not on the Prohibited Entities List
before the contract assignment will be approved by the State.
During the term of the Contract, should the state agency receive
information that a person (as defined in State Finance Law
§ 165-a) is in violation of the above-referenced certifications,
the state agency will review such information and offer the
person an opportunity to respond. If the person fails to
demonstrate that it has ceased its engagement in the investment
activity which is in violation of the Act within 90 days after the
determination of such violation, then the state agency shall take
such action as may be appropriate and provided for by law, rule,
or contract, including, but not limited to, imposing sanctions,
seeking compliance, recovering damages, or declaring the
Contractor in default.
The state agency reserves the right to reject any bid, request for
assignment, renewal or extension for an entity that appears on
the Prohibited Entities List prior to the award, assignment,
renewal or extension of a contract, and to pursue a
responsibility review with respect to any entity that is awarded
a contract and appears on the Prohibited Entities list after
contract award.
27.
ADMISSIBILITY
OF
REPRODUCTION
OF
CONTRACT.
Notwithstanding the best evidence rule or any
other legal principle or rule of evidence to the contrary, the
Contractor acknowledges and agrees that it waives any and all
objections to the admissibility into evidence at any court
proceeding or to the use at any examination before trial of an
electronic reproduction of this contract, in the form approved
by the State Comptroller, if such approval was required,
regardless of whether the original of said contract is in
existence.
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
APPENDIX B
GENERAL SPECIFICATIONS
APRIL 2016
TABLE OF CONTENTS
GENERAL
PAGE
1.
Ethics Compliance
1
2.
Definitions
1
BID SUBMISSION
3.
International Bidding
3
4.
Bid Opening
3
5.
Late Bids
3
6.
Confidential/Trade Secret Materials
3
7.
Prevailing Wage Rates - Public Works
and Building Services Contracts
3
8.
Taxes
4
9.
Expenses Prior to Contract Execution
4
10. Product References
4
11. Remanufactured, Recycled, Recyclable,
or Recovered Materials
4
12. Products Manufactured in Public
Institutions
4
13. Pricing
4
14. Site Inspection
5
15. Purchasing Card
5
BID EVALUATION
16. Bid Evaluation
5
17. Tie Bids
5
18. Quantity Changes Prior to Award
5
19. Timeframe for Offers
5
20. Debriefings
5
21. Contract Publicity
5
TERMS & CONDITIONS
22. Contract Creation/Execution
6
23. Contract Term – Extension
6
24. Official Use Only/No Personal Use
6
25. Participation in Centralized Contracts
6
26. Modification of Contract Terms
6
27. Scope Changes
6
28. Estimated/Specific Quantity Contracts
6
29. Emergency Contracts
6
30. Purchase Orders
7
31. Product Delivery
7
32. Weekend and Holiday Deliveries
7
33. Shipping/Receipt of Product
7
TERMS & CONDITIONS
(CONT.)
PAGE
34. Title and Risk of Loss for Products Other than
Technology Products
7
35. Product Substitution
8
36. Rejected Product
8
37. Installation
8
38. Repaired or Replaced Products, Parts, or
Components
8
39. Employees, Subcontractors and Agents
8
40. Assignment
8
41. Subcontractors and Suppliers
8
42. Suspension of Work
8
43. Termination
9
44. Savings/Force Majeure
9
45. Contract Invoicing
10
46. Default - Authorized User
10
47. Prompt Payments
10
48. Remedies for Breach
10
49. Assignment of Claim
11
50. Toxic Substances
11
51. Independent Contractor
11
52. Security
11
53. Cooperation with Third Parties
11
54. Warranties
11
55. Legal Compliance
12
56. Indemnification
12
57. Indemnification Relating to Infringement
13
58. Limitation of Liability
13
59. Dispute Resolution Procedures
13
To the extent the scope of the Solicitation or Contract includes
the sale, development, maintenance, or use of information
technology Products such as software, computer components,
systems, or networks for the processing, and distribution, or
storage, or storage of data, the following clauses shall govern, as
applicable.
60. Software License Grant
14
61. Product Acceptance
15
62. Audit of Licensed Product Usage
16
63. No Hardstop or Passive License Monitoring
16
64. Ownership/Title to Project Deliverables
16
65. Proof of License
17
66. Changes to Product or Service Offerings
17
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
1
GENERAL
1.
ETHICS
COMPLIANCE
All Bidders/Contractors and their
employees must comply with the requirements of Sections 73 and 74
of the Public Officers Law, other State codes, rules, regulations and
executive orders establishing ethical standards for the conduct of
business with New York State. In signing the Bid, Bidder certifies full
compliance with those provisions for any present or future dealings,
transactions, sales, contracts, services, offers, relationships, etc.,
involving New York State and/or its employees. Failure to comply
with those provisions may result in disqualification from the bidding
process, termination of contract, and/or other civil or criminal
proceedings as required by law.
2.
DEFINITIONS
Terms used herein shall have the following
meanings:
a. AUTHORIZED
USER
Authorized User shall have the meaning
set forth in State Finance Law Section 163(1)(k) and includes, but is
not limited to, New York State Agencies, political subdivisions, local
governments, public authorities, public school and fire districts, public
and nonprofit libraries, and certain other nonpublic/nonprofit
organizations.
b. BID
A response to the Solicitation submitted by a Bidder to
provide Products.
c. BIDDER
Any person or entity who submits a response to the
Solicitation. At the time that a Bidder executes a Contract with the
State, the Bidder shall become a “Contractor.” See also “Contractor.”
d. BID
SPECIFICATIONS
A written description drafted by OGS or
an Authorized User setting forth the specific terms of the intended
procurement, which may include: physical or functional
characteristics, the nature of a Product, any description of the work to
be performed, Products to be provided, the necessary qualifications of
the Bidder, the capacity and capability of the Bidder to successfully
carry out the proposed Contract, or the process for achieving specific
results and/or anticipated outcomes or any other requirement necessary
to perform work. Where this Appendix B is incorporated in negotiated
Contracts that have not been competitively solicited, the term “Bid
Specifications” shall be deemed to refer to the terms and conditions set
forth in the negotiated Contract and associated documentation.
e. COMMISSIONER
The Commissioner of OGS or his or her
designee, or, in the case of Bid Specifications issued by an Authorized
User, the head of such Authorized User or his or her authorized
representative.
f. CONTRACT
The writings that contain the agreement of the
Commissioner and the Contractor setting forth the total legal
obligation between the parties as determined by applicable rules of
law, and which most typically include the following classifications of
public procurements:
1.
Agency
Specific
Contracts
Contracts where the written
description for a Product or a particular scope of work is
described and defined to meet the needs of one or more
Authorized Users.
2.
Centralized
Contracts
Single- or multiple-award Contracts
where the written description for a Product or general scope
of work is described and defined by OGS to meet the needs
of Authorized Users. Centralized Contracts may be awarded
through multiple awards or through adoption of another
jurisdiction’s contract or on a sole source, single source,
emergency, or competitive basis. Once established,
procurements may be made from the selected Contractors
without further competition or Mini-Bid unless otherwise
required by the Contract.
3.
Back
-
Drop
Contracts
Multiple-award Centralized
Contracts where OGS provides a written description for a
Product or general scope of work to meet the needs of
Authorized Users. Bids may be submitted either at a date
and time certain or may be accepted on a continuous or
periodic recruitment basis, as set forth in the Solicitation.
Selection of a Contractor from among Back-Drop contract
holders for an actual Product, project or particular scope of
work may be subsequently made as set forth in the Contract.
4.
Piggyback
Contract
A Contract let by any department,
agency or instrumentality of the United States government,
or any department, agency, office, political subdivision or
instrumentality of any state or group of states that is adopted
and extended for use by OGS in accordance with the
requirements of the State Finance Law.
5.
Contract Award
Letter
A letter to the successful Bidder
indicating acceptance of its Bid in response to a Solicitation.
Unless otherwise specified, the issuance of a letter of
acceptance forms a Contract but is not an order for Product,
and the Contractor should not take any action with respect to
actual Contract deliveries except on the basis of Purchase
Orders sent from Authorized Users.
g CONTRACT
AWARD
NOTIFICATION
An announcement to
Authorized Users that a Contract has been established.
h. CONTRACTOR
Any successful Bidder to whom a Contract has
been awarded by the Commissioner.
i. DOCUMENTATION
The complete set of manuals (e.g., user,
installation, instruction or diagnostic manuals) in either hard or
electronic copy, that are necessary to enable an Authorized User to
properly test, install, operate and enjoy full use of the Product.
j. ENTERPRISE
The total business operations in the United States
of an Authorized User without regard to geographic location where
such operations are performed or the entity actually performing such
operations on behalf of the Authorized User.
k. ENTERPRISE
LICENSE
A license grant of unlimited rights to
deploy, access, use and execute Product anywhere within the
Enterprise up to the maximum capacity stated on the Purchase Order
or in the Contract.
l
. ERROR CORRECTIONS
Machine executable software code
furnished by Contractor which corrects the Product so as to conform to
the applicable warranties, performance standards and/or obligations of
the Contractor.
m. GROUP
A classification of a Product that is designated by OGS.
n. INVITATION
FOR
BIDS
(
IFB
) A type of Solicitation that is
most typically used for procurements where requirements can be stated
and award will be made based on lowest price to the responsive and
responsible Bidder or Bidders.
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
2
o. LICENSED
SOFTWARE
Software transferred upon the terms
and conditions set forth in the Contract. “Licensed Software” includes
Error Corrections, upgrades, or enhancements, and any deliverables
due under a technical support/maintenance or service contract (e.g.,
Patches, programs, code or data conversion, or custom programming).
p. LICENSEE
An Authorized User who acquires Product from
Contractor by issuing a Purchase Order in accordance with the terms
and conditions of the Contract; provided that, for purposes of
compliance with an individual license, the term “Licensee” shall be
deemed to refer separately to the individual Authorized User who took
receipt of and who is executing the Product, and who shall be solely
responsible for performance and liabilities incurred. In the case of
acquisitions by State Agencies, the Licensee shall be the State of New
York.
q. LICENSE
EFFECTIVE
DATE
The date Product is delivered to
an Authorized User. Where a License involves Licensee’s right to
copy a previously licensed and delivered master copy of a program,
the License Effective Date for additional copies shall be deemed to be
the date on which the Purchase Order is executed.
r. LICENSOR
A Contractor who transfers rights in proprietary
Product to Authorized Users in accordance with the rights and
obligations specified in the Contract.
s. MINI-BID
A document used by an Authorized User containing
transaction-specific requirements soliciting responses from
Contractors previously qualified under a Centralized Contract for such
Products.
t. OGS
The New York State Office of General Services.
u. PATCH
Software designed to update, fix, or improve the Product
or its supporting data. This includes fixing security vulnerabilities and
other bugs, including hot fixes, to improve usability or performance.
v. PRODUCTS
Items or deliverables under any Solicitation or
Contract and may include commodities, services and/or technology.
w. PURCHASE
ORDER
The Authorized User’s fiscal form or
format that is used when making a purchase (e.g., formal written
Purchase Order, Purchasing Card, electronic Purchase Order, or other
authorized instrument).
x. REQUEST
FOR
PROPOSALS
(
RFP
) A type of Solicitation that
is used for procurements where factors in addition to cost are
considered and weighted in awarding the contract and where the award
will be made based on “best value,” as defined by the State Finance
Law, to one or more responsive and responsible Bidders.
y. REQUEST
FOR
QUOTATION
(
RFQ
) A procurement method
that can be used in situations such as discretionary, sole source, single
source, or emergency purchases and certain Centralized Contracts.
z. RESPONSIBLE
BIDDER
A Bidder that is determined to have
financial and organizational capacity, legal authority, satisfactory
previous performance, skill, judgment and integrity, and that is found
to be competent, reliable and experienced, as determined by the
Commissioner. For purposes of being deemed responsible, a Bidder
must also be determined to be in compliance with Sections 139-j and
139-k of the State Finance Law relative to restrictions on contacts
during the procurement process and disclosure of contacts and prior
findings of non-responsibility under these statutes.
aa. RESPONSIVE
BIDDER
A Bidder meeting the specifications or
requirements prescribed in the Solicitation, as determined by the OGS
Commissioner.
bb. SINGLE
SOURCE
A procurement where two or more Bidders
can supply the required Product, and the Commissioner may award the
contract to one Bidder over the other.
cc. SITE
The location (street address) where Product will be
delivered or executed.
dd. SOLE
SOURCE
A procurement where only one Bidder is
capable of supplying the required Product.
ee. SOLICITATION
Writings by the State setting forth the scope,
terms, conditions and technical specifications for a procurement of
Product. The procurement may be undertaken on a competitive or
non-competitive basis. Such writings typically include, but are not
limited to: Invitation for Bids (IFB), Request for Quotations (RFQ),
Request for Proposals (RFP), addenda or amendments thereto, and
terms and conditions that are incorporated by reference, including but
not limited to Appendix A (Standard Clauses for NYS Contracts),
Appendix B (General Specifications), and identified attachments.
Where the procurement is undertaken on a non-competitive basis, the
term “Solicitation” shall be deemed to refer to all the terms and
conditions identified by the State.
ff. SOURCE
CODE
The programming statements or instructions
written and expressed in any language understandable by a human
being skilled in the art which are translated by a language compiler to
produce executable machine object code.
gg. STATE
State of New York.
hh. STATE AGENCY OR AGENCIES
The State of New York,
acting by or through one or more departments, boards, commissions,
offices or institutions of the State of New York.
ii. SUBCONTRACTOR
Any individual or legal entity (including but
not limited to sole proprietor, partnership, limited liability company,
firm or corporation) who has entered into a contract, express or
implied, for the performance of a portion of a Contract with a
Contractor.
jj. TERMS OF LICENSE
The terms and conditions set forth in the
Contract that are in effect and applicable to a Purchase Order at the
time of order placement.
kk. THIRD-PARTY SOFTWARE
Any software that is developed
independently of Contractor and which may be governed by a separate
license.
ll
. VIRUS
Any computer code, whether or not written or conceived
by Contractor, that disrupts, disables, harms, or otherwise impedes in
any manner the operation of the Product, or any other associated
software, firmware, hardware, or computer system (such as local area
or wide-area networks), including aesthetic disruptions or distortions,
but does not include security keys or other such devices installed by
Product manufacturer. Virus shall also include any malware, adware,
or other computer code, whether or not written or conceived by
Contractor, that allows data or metrics to be copied, redirected, or
modified without the express consent of the Authorized User.
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
3
BID SUBMISSION
3.
INTERNATIONAL BIDDING
All Bids, including all
information and Product required by the Solicitation or provided as
explanation thereof, shall be submitted in English. All prices shall be
expressed, and all payments shall be made, in United States Dollars
(US$). Any Bids submitted which do not meet the above criteria will
be rejected.
4.
BID OPENING
Bids may, as applicable, be opened publicly.
The Commissioner reserves the right at any time to postpone or cancel
a scheduled Bid opening.
5.
LATE
BIDS
Bids must be received at the location designated in
the Solicitation at or before the date and time established in the
Solicitation for the Bid opening or receipt of Bids.
Any Bid received at the designated location after the established time
will be considered a Late Bid. A Late Bid may be rejected and
disqualified from award. Notwithstanding the foregoing, a Late Bid
may be accepted in the Commissioner’s sole discretion where (i) no
timely Bids meeting the requirements of the Solicitation are received,
(ii) in the case of a multiple award, an insufficient number of timely
Bids are received to satisfy the multiple award, or (iii) the Bidder has
demonstrated to the satisfaction of the Commissioner that the Late Bid
was caused solely by factors outside the control of the Bidder.
However, in no event shall the Commissioner be under any obligation
to accept a Late Bid.
The basis for any determination to accept a Late Bid shall be
documented in the procurement record.
6
.
CONFIDENTIAL/TRADE SECRET MATERIALS
a.
BIDDER/CONTRACTOR
Confidential, trade secret or
proprietary materials as defined by the laws of the State of New York
must be clearly marked and identified as such upon submission by the
Bidder/Contractor. Marking the Bid as “confidential” or “proprietary”
on its face or in the document header or footer shall not be considered
by the Commissioner or Authorized User to be sufficient without
specific justification as to why disclosure of particular information in
the Bid would cause substantial injury to the competitive position of
the Bidder/Contractor. Bidders/Contractors intending to seek an
exemption from disclosure of these materials under the Freedom of
Information Law must request the exemption in writing, setting forth
the reasons for the claimed exemption. The Commissioner’s or
Authorized User’s receipt/acceptance of the claimed materials does not
constitute a determination on the exemption request, which
determination will be made in accordance with statutory procedures.
Properly identified information that has been designated confidential,
trade secret, or proprietary by the Bidder/Contractor will not be
disclosed except as may be required by the Freedom of Information
Law or other applicable State and federal laws.
b.
COMMISSIONER OR AUTHORIZED USER
Contractor
warrants, covenants and represents that any confidential information
obtained by Contractor, its agents, Subcontractors, officers,
distributors, resellers or employees in the course of performing its
obligations, including without limitation, security procedures, business
operations information, or commercial proprietary information in the
possession of the State or any Authorized User hereunder or received
from another third party, will not be divulged to any third parties
without the written consent of the Commissioner or Authorized User.
Contractor shall not be required to keep confidential any such material
that is publicly available through no fault of Contractor, independently
developed by Contractor without reliance on confidential information
of the Authorized User, or otherwise obtained under the Freedom of
Information Law or other applicable New York State laws and
regulations. This warranty shall survive termination of this Contract.
Contractor further agrees to take commercially reasonable steps to
inform its agents, Subcontractors, officers, distributors, resellers or
employees of the obligations arising under this clause to ensure such
confidentiality.
7.
PREVAILING WAGE RATES - PUBLIC WORKS AND
BUILDING SERVICES CONTRACTS
If any portion of work
being solicited is subject to the prevailing wage rate provisions of the
Labor Law, the following shall apply:
a.
PREVAILING WAGE RATE APPLICABLE TO BIDS
A
copy of the applicable prevailing wage rate schedule is incorporated
into the Solicitation and may also be obtained by visiting
www.labor.ny.gov and typing in the search box: Prevailing Wage
Schedule Request. Bidders must submit Bids which are based upon
the prevailing hourly wages, and supplements in cash or equivalent
benefits (e.g., fringe benefits and any cash or non-cash compensation
which are not wages, as defined by law) that equal or exceed the
applicable prevailing wage rates for the location where the work is to
be performed. Bidders may not submit Bids based upon hourly wage
rates and supplements below the applicable prevailing wage rates as
established by the New York State Department of Labor. Bids that fail
to comply with this requirement will be disqualified.
b.
WAGE RATE PAYMENTS/CHANGES DURING
CONTRACT TERM
The wages to be paid under any resulting
Contract shall not be less than the prevailing rate of wages and
supplements as set forth by law. It is required that the Contractor keep
informed of all changes in the prevailing wage rates during the
Contract term that apply to the classes of individuals supplied by the
Contractor on any projects resulting from this Contract, subject to the
provisions of the Labor Law. Contractor is solely liable for and must
pay such required prevailing wage adjustments during the Contract
term for its employees as required by law and is responsible for
ensuring any Subcontractors utilized on the Contract also comply with
the prevailing wage provisions of the New York State Labor Law.
c.
ARTICLE 8 CONSTRUCTION/PUBLIC WORKS
CONTRACTS
In compliance with Article 8, Section 220 of the New
York State Labor Law:
i.
Posting
The Contractor must publicly post on the work Site,
in a prominent and accessible place, a legible schedule of the
prevailing wage rates and supplements.
ii.
Payroll Records
Contractors and Subcontractors must keep
original payrolls or transcripts subscribed and affirmed as true under
the penalties of perjury as required by law. For public works contracts
over $25,000 where the Contractor maintains no regular place of
business in the State, such records must be kept at the work Site. For
building services contracts, such records must be kept at the work Site
while work is being performed.
iii.
Submission of Certified Payroll Transcripts for Public
Works Contracts Only
Contractors and Subcontractors on public
works Contracts must submit monthly payroll transcripts to the
Authorized User issuing the Purchase Order for the work. This
provision does not apply to Article 9 of the Labor Law building
services contracts.
iv. Day’s Labor
No laborers, workmen or mechanics in the
employ of the Contractor, Subcontractor or other person doing or
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
4
contracting to do all or part of the work contemplated by the Contract
shall be permitted or required to work more than eight hours in any
one calendar day or more than five calendar days in any one week
except in cases of extraordinary emergency including fire, flood or
danger to life or property. “Extraordinary emergency” shall be
deemed to include situations in which sufficient laborers, workers and
mechanics cannot be employed to carry on public work expeditiously
as a result of such restrictions upon the number of hours and days of
labor and the immediate commencement or prosecution or completion
without undue delay of the public work is necessary in the judgment of
the NYS Commissioner of Labor for the preservation of the Contract
Site or for the protection of the life and limb of the persons using the
Contract Site.
d.
ARTICLE 9 BUILDING SERVICES CONTRACTS
In
compliance with Article 9, Section 230 of the New York State Labor
Law:
i.
Payroll Records
Contractors and Subcontractors must keep
original payrolls or transcripts subscribed and affirmed as true under
the penalties of perjury as required by law. Where the Contractor or
Subcontractor maintains no regular place of business in New York
State, such records must be kept at the work Site while work is being
performed.
ii. Overtime
Employees of Contractors and Subcontractors who
work in excess of eight hours in a day or forty hours in a week shall be
paid at the overtime rate identified by the New York State Department
of Labor.
8.
TAXES
a.
Unless otherwise specified in the Solicitation, Bid Specifications
or Contract, the quoted Bid price includes all taxes applicable to the
transaction.
b.
Purchases made by the State of New York and certain non-State
Authorized Users are exempt from New York State and local sales
taxes and, with certain exceptions, federal excise taxes. To satisfy the
requirements of the New York State sales tax exemption, either the
Purchase Order issued by a State Agency or the invoice forwarded to
authorize payment for such purchases will be sufficient evidence that
the sale by the Contractor was made to the State, an exempt
organization under Section 1116(a)(1) of the Tax Law. Non-State
Authorized Users must offer their own proof of exemption upon
request. No person, firm or corporation is, however, exempt from
paying the State Truck Mileage and Unemployment Insurance or
Federal Social Security taxes, which remain the sole responsibility of
the Bidder/Contractor.
c.
Purchases by Authorized Users other than the State of New York
may be subject to certain taxes which were not included in the Bid
price, and in those instances the tax should be computed based on the
Contract price and added to the invoice submitted to such entity for
payment.
9.
EXPENSES PRIOR TO CONTRACT EXECUTION
The
Commissioner and any Authorized Users are not liable for any costs
incurred by a Bidder or Contractor in the preparation and production
of a Bid, Mini-Bid, cost proposal revision, or for any work performed
prior to Contract execution.
10.
PRODUCT REFERENCES
a.
“
Or
Equal
” In all Solicitations or Bid Specifications, the words
“or equal” are understood to apply where a copyrighted, brand name,
trade name, catalog reference, or patented Product is referenced.
References to such specific Product are intended as descriptive, not
restrictive, unless otherwise stated. Comparable Product will be
considered if proof of compatibility is provided, including appropriate
catalog excerpts, descriptive literature, specifications and test data, etc.
The Commissioner’s decision as to acceptance of the Product as equal
shall be final.
b.
Discrepancies
in
References
In the event of a discrepancy
between the model number referenced in the Solicitation or Bid
Specifications and the written description of the Products that cannot
be reconciled, then the written description shall prevail.
11.
REMANUFACTURED, RECYCLED, RECYCLABLE, OR
RECOVERED MATERIALS
Upon the conditions specified in the
Solicitation and in accordance with the laws of the State of New York,
Contractors are encouraged to use recycled, recyclable, or recovered
materials in the manufacture of Products and packaging to the
maximum extent practicable without jeopardizing the performance or
intended end use of the Product or packaging unless such use is
precluded due to health, welfare, safety requirements, or in the
Solicitation. Contractors are further encouraged to offer
remanufactured Products to the maximum extent practicable without
jeopardizing the performance or intended end use of the Product unless
such use is precluded due to health, welfare, safety requirements, or by
the Solicitation. Where such use is not practical, suitable, or permitted
by the Solicitation, Contractor shall deliver new materials in
accordance with the “Warranties” set forth below.
Items with recycled, recyclable, recovered, refurbished, or
remanufactured content must be identified in the Bid or Bidder will be
deemed to be offering new Product.
12.
PRODUCTS MANUFACTURED IN PUBLIC
INSTITUTIONS
Bids offering Products that are manufactured or
produced in public institutions will be rejected.
13.
PRICING
a.
Unit
Pricing
If required by the Solicitation, the Bidder should
insert the price per unit specified and the price extensions in decimals,
not to exceed four places, for each item unless otherwise specified in
the Solicitation. In the event of a discrepancy between the unit price
and the extension, the unit price shall govern unless, in the sole
judgment of the Commissioner, such unit pricing is obviously
erroneous.
b.
Net
Pricing
Unless otherwise required by the Solicitation, prices
shall be net, including transportation, customs, tariff, delivery and
other charges fully prepaid by the Contractor to the destination
indicated in the Solicitation or Purchase Order.
c.
“No Charge” Bid
When Bids are requested on a number of
Products as a Group or lot, a Bidder desiring to Bid “no charge” on a
Product in the Group or lot must clearly indicate such. Otherwise,
such Bid may be considered incomplete and be rejected, in whole or in
part, at the discretion of the Commissioner.
d.
Educational Pricing
All Products to be supplied for educational
purposes that are subject to educational discounts shall be identified in
the Bid and such discounts shall be made available to qualifying
institutions.
e.
Third Party Financing
If Product acquisitions are financed
through any third party financing, Contractor may be required as a
condition of Contract award to agree to the terms and conditions of a
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
5
“Consent & Acknowledgment Agreement” in a form acceptable to the
Commissioner.
f.
Specific price decreases:
(i)
GSA Changes
: Where net pricing under the Contract is
based on an approved GSA schedule, price decreases shall take
effect automatically during the Contract term and apply to
Purchase Orders submitted on or after the date the approved GSA
schedule pricing decreases during the Contract term; or
(ii)
Commercial Price List Reductions
: Where net pricing
under the Contract is based on a discount from Contractor’s list
prices, price decreases shall take effect automatically during the
Contract term and apply to Purchase Orders submitted on or after
the date Contractor lowers its pricing on its commercial price lists
during the Contract term; or
(iii)
Special Offers/Promotions Generally
: Where Contractor
generally offers more advantageous special price promotions or
special discount pricing to other customers during the Contract
term for a similar quantity, and the maximum price or discount
associated with such offer or promotion is better than the discount
or net pricing otherwise available under this Contract, such better
price or discount shall apply for similar quantity transactions
under this Contract for the life of such general offer or promotion;
and
(iv)
Special
Offers
/
Promotions
to
Authorized
Users
:
Contractor may offer Authorized Users, under either this Contract
or any other contracting vehicle, competitive pricing which is
lower than the net pricing set forth herein at any time during the
Contract term and such lower pricing shall not be applied as a
global price reduction under the Contract pursuant to the
foregoing paragraph (iii).
Unless otherwise specified in the Solicitation, Contractor may offer
lower prices or better terms (see Modification of Contract Terms) on
any specific Purchase Order from any Authorized User without being
in conflict with, or having any obligation to comply on a global basis
with, the terms of this clause.
g.
Cost Proposal Revisions
A Contractor may be solicited prior to
Contract award to propose the best possible offer for the Product
being bid on, in accordance with State Finance Law Section 163(9)(c).
A cost proposal revision must be a lower price than the initial price.
14.
SITE INSPECTION
Where a Site inspection is required, Bidder
shall be required to inspect the Site, including environmental or other
conditions, for pre-existing deficiencies that may affect the installed
Product or that may affect Bidder’s ability to properly deliver, install
or otherwise provide the required Product. All inquiries regarding
such conditions shall be made in writing. Bidder shall be deemed to
have knowledge of any deficiencies or conditions that such inspection
or inquiry might have disclosed. Bidder must provide a detailed
explanation with its Bid if additional work is required under this clause
in order to properly provide the required Product.
15. PURCHASING CARD
The State’s Purchasing Card program is
designed to be an efficient and cost effective way to expedite
purchases. The Purchasing Card (also referred to as the Procurement
Card) is a credit card that enables Authorized Users to make
authorized purchases directly from a Contractor without processing
formal Purchase Orders. Purchasing Cards are issued to selected
employees who are authorized to make purchases for the Authorized
User. Cardholders can make purchases directly from any Contractor
that accepts the Purchasing Card.
BID EVALUATION
16.
BID EVALUATION
The Commissioner reserves the right to
accept or reject any and all Bids, or separable portions of Bids, and
waive technicalities, irregularities, and omissions if the Commissioner
determines the best interests of the State will be served. The
Commissioner, in his or her sole discretion, may accept or reject
illegible, incomplete or vague Bids, and the Commissioner’s decision
shall be final. A conditional or revocable Bid which clearly
communicates the terms or limitations of acceptance may be
considered, and Contract award may be made in compliance with the
Bidder’s conditional or revocable terms in the Bid.
17.
TIE BIDS
In the event two Bids are found to be substantially
equivalent, price shall be the basis for determining the award recipient.
While prompt payment discounts will not be considered in
determining the low Bid, the Commissioner may consider any prompt
payment discount in resolving Bids which are otherwise tied. If two or
more Bidders submit substantially equivalent Bids as to pricing or
other factors, the decision of the Commissioner to award a Contract to
one or more of such Bidders shall be final.
18.
QUANTITY CHANGES PRIOR TO AWARD
The
Commissioner reserves the right, at any time prior to the award of a
specific quantity Contract, to alter in good faith the quantities listed in
the Solicitation. In the event such right is exercised, the lowest
responsible Bidder meeting the Solicitation requirements will be
advised of the revised quantities and afforded an opportunity to extend
or reduce its Bid price in relation to the changed quantities. Refusal by
the low Bidder to so extend or reduce its Bid price may result in the
rejection of its Bid and the award of such Contract to the lowest
responsible Bidder who accepts the revised qualifications.
19.
TIMEFRAME
FOR
OFFERS
The Commissioner reserves the
right to make awards within 60 days after the date of the Bid opening
or such other period of time as set forth in the Solicitation. The Bids
must remain firm until a Contract is awarded, but if a Contract is not
awarded within 60 days or other time period set forth in the
Solicitation, the Bidder may withdraw its Bid any time thereafter by
delivering to the Commissioner written notice of the withdrawal of its
Bid.
20. DEBRIEFINGS
Pursuant to Section 163(9)(c) of the State
Finance Law, any unsuccessful Bidder may request a debriefing
regarding the reasons that the Bid submitted by the Bidder was not
selected for award. Requests for a debriefing must be made within 15
calendar days of notification by OGS that the Bid submitted by the
Bidder was not selected for award. Requests should be submitted in
writing to a designated contact identified in the Solicitation.
21.
CONTRACT PUBLICITY
Any Contractor press or media
releases, advertisements, or promotional literature, regardless of the
medium, referring to an awarded Contract must be reviewed and
approved by the Commissioner prior to issuance. In addition,
Contractor shall not use, for any purpose, the New York State of
Opportunity registered trademark or the New York State coat of arms
without prior written approval from the State.
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
6
TERMS & CONDITIONS
22.
CONTRACT CREATION/EXECUTION
Except for contracts
governed by Article 11-B of the State Finance Law, subject to and
upon receipt of all required approvals as set forth in the Solicitation, a
Contract shall be deemed executed and created with the successful
Bidders upon the Commissioner’s mailing or electronic
communication to the address on the Bid/Contract of: (i) the final
Contract Award Notice; (ii) a fully executed Contract; or (iii) a
Purchase Order authorized by the Commissioner.
23.
CONTRACT TERM - EXTENSION
In addition to any stated
extension periods in the Contract, any Contract or portion thereof
awarded by the Commissioner may be extended by mutual agreement
of the Commissioner and the Contractor for an additional period of up
to one year. Such extension for up to an additional one-year period
may be exercised on a month-to-month basis or in other stated periods
of time.
24.
OFFICIAL USE ONLY/NO PERSONAL USE
The Contract
is only for official use by Authorized Users. Use of the Contract for
personal or private purposes is strictly prohibited.
25. PARTICIPATION IN CENTRALIZED CONTRACTS
a.
State Agencies
All State Agencies may utilize and purchase
under any Centralized Contract let by the Commissioner, unless the
Solicitation limits purchases to specific State Agencies.
b.
Non-State Agency Authorized Users
Authorized Users other
than State Agencies are permitted to make purchases through
Centralized Contracts where permitted by law, the Contract or the
Commissioner.
c.
Voluntary Extension
Purchase Orders issued against a
Centralized Contract by any Authorized User not provided for in the
Contract shall be honored by the Contractor at its discretion and only
with the approval of the OGS Commissioner and any other approvals
required by law.
d.
Responsibility
for
Performance
Participation in Centralized
Contracts by Authorized Users is permitted upon the following
conditions: (i) the responsibility with regard to performance of any
contractual obligation, covenant, condition or term thereunder by any
Authorized User other than State Agencies shall be borne and is
expressly assumed by such Authorized User and not by the State; (ii) a
breach of the Contract by any particular Authorized User shall neither
constitute nor be deemed a breach of the Contract as a whole which
shall remain in full force and effect, and shall not affect the validity of
the Contract nor the obligations of the Contractor thereunder
respecting non-breaching Authorized Users, whether State or
otherwise; (iii) for a breach by an Authorized User other than a State
Agency, the State specifically and expressly disclaims any and all
liability for such breach; and (iv) each non-State Agency Authorized
User and Contractor guarantees to hold the State, its officers, agents
and employees harmless from any liability that may be or is imposed
by the non-State Agency Authorized User’s or Contractor’s failure to
perform in accordance with its obligations under the Contract.
e.
Contract
Migration
Authorized Users holding individual
Contracts with a Contractor at the time that Contractor is awarded a
Centralized Contract for the same Products shall be permitted to
migrate to that Centralized Contract effective with its commencement
date. Such migration shall not operate to diminish, alter or eliminate
any right that the Authorized User otherwise had under the terms and
conditions of their individual Contract.
26.
MODIFICATION
OF
CONTRACT
TERMS
The terms and
conditions set forth in the Contract shall govern all transactions by
Authorized Users under this Contract. The Contract may only be
modified or amended upon mutual written agreement of the
Commissioner and Contractor.
The Contractor may, however, offer any Authorized User more
advantageous pricing, payment, or other terms and conditions than
those set forth in the Contract. In such event, a copy of such terms
shall be furnished to the Authorized User and Commissioner by the
Contractor at the time of such offer.
Other than where such terms are more advantageous for the
Authorized User than those set forth in the Contract, no alteration or
modification of the terms of the Contract, including substitution of
Product, shall be valid or binding against an Authorized User unless
authorized by the Commissioner or specified in the Contract Award
Notification. No such alteration or modification shall be made by
unilaterally affixing such terms to Product upon delivery (including,
but not limited to, attachment or inclusion of standard pre-printed
order forms, product literature, “shrink wrap” terms accompanying
software upon delivery, or other documents) or by incorporating such
terms onto order forms, Purchase Orders or other documents
forwarded by the Contractor for payment, notwithstanding Authorized
User’s subsequent acceptance of Product, or that Authorized User has
subsequently processed such document for approval or payment.
27.
SCOPE CHANGES
The Commissioner reserves the right to
require, by written order, changes to the scope of the Contract,
provided that such changes do not materially alter the general scope of
the Contract. If any such change causes an increase or decrease in the
cost of, or the time required for, performance of any part of the work
under the Contract, whether or not changed by the order, the
Commissioner shall, upon notice from Contractor as hereafter stated,
make an equitable adjustment in the Contract price, the delivery
schedule or both and shall modify the Contract. The Contractor must
assert its right to an adjustment under this clause within 30 days from
the date of receipt of the written order. However, if the Commissioner
decides that the facts justify it, the Commissioner may provide an
adjustment without receipt of a notice from Contractor. In the event of
a dispute between the Contractor and the Commissioner, such dispute
shall be resolved in accordance with the OGS Dispute Resolution
Procedures; provided, however, that nothing in this clause shall excuse
the Contractor from proceeding with the Contract as changed.
28.
ESTIMATED/SPECIFIC QUANTITY CONTRACTS
Estimated quantity contracts, also referred to as indefinite
delivery/indefinite quantity contracts, are expressly agreed and
understood to be made for only the quantities, if any, actually ordered
during the Contract term. No guarantee of any quantity is implied or
given.
With respect to any specific quantity stated in the Contract, the
Commissioner reserves the right after award to order up to 20% more
or less (rounded to the next highest whole number) than the specific
quantities called for in the Contract. Notwithstanding the foregoing,
the Commissioner may purchase greater or lesser percentages of
Contract quantities should the Commissioner and Contractor so agree.
Such agreement may include an equitable price adjustment.
29.
EMERGENCY
CONTRACTS
In the event that a disaster
emergency is declared by Executive Order under Section 28 of Article
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
7
2-B of the Executive Law, or the Commissioner determines pursuant
to his or her authority under Section 163(10)(b) of the State Finance
Law that an emergency exists requiring the prompt and immediate
delivery of Product, the Commissioner reserves the right to obtain
such Product from any source, including but not limited to this
Contract, as the Commissioner in his or her sole discretion determines
will meet the needs of such emergency. Contractor shall not be
entitled to any claim for lost profits for Product procured from other
sources pursuant to this clause. The reasons underlying the finding
that an emergency exists shall be included in the procurement record.
30.
PURCHASE ORDERS
Unless otherwise authorized in writing
by the Commissioner, no Product is to be delivered or furnished by
Contractor until transmittal of an official Purchase Order from the
Authorized User. Unless terminated or cancelled pursuant to the
authority vested in the Commissioner, Purchase Orders shall be
effective and binding upon the Contractor (i) in the case of formal
written Purchase Orders, when placed in the mail prior to the
termination of the Contract and addressed to the Contractor at the
address for receipt of orders set forth in the Contract or in the Contract
Award Notification or (ii) in the case of electronic Purchase Orders or
Purchasing Card purchases, when electronically transmitted to the
Contractor prior to the termination of the Contract.
All Purchase Orders issued pursuant to a Contract let by the
Commissioner must be identified with the appropriate Contract
number and, if necessary, required State approvals. As deemed
necessary, the Authorized User may confirm pricing and other Product
information with the Contractor prior to placement of the Purchase
Order. The State reserves the right to require any other information
from the Contractor which the State deems necessary in order to
complete any Purchase Order placed under the Contract. Unless
otherwise specified, all Purchase Orders against Centralized Contracts
will be placed by Authorized Users directly with the Contractor and
any discrepancy between the terms stated on the Contractor’s order
form, confirmation or acknowledgment, and the Contract terms shall
be resolved in favor of the terms most favorable to the Authorized
User. Should an Authorized User add written terms and conditions to
the Purchase Order that conflict with the terms and conditions of the
Contract, the Contractor has the option of rejecting the Purchase Order
within five business days of its receipt but shall first attempt to
negotiate the additional written terms and conditions in good faith with
the Authorized User, or fulfill the Purchase Order. Notwithstanding
the above, the Authorized User reserves the right to dispute any
discrepancies arising from the presentation of additional terms and
conditions with the Contractor.
If, with respect to an Agency Specific Contract let by the
Commissioner, a Purchase Order is not received by the Contractor
within two weeks after the issuance of a Contract Award Notification,
it is the responsibility of the Contractor to request in writing that the
appropriate Authorized User forward a Purchase Order. If, thereafter,
a Purchase Order is not received within a reasonable period of time,
the Contractor shall promptly notify in writing the appropriate
purchasing officer in OGS. Failure to timely notify such officer may,
in the discretion of the OGS Commissioner and without cost to the
State, result in the cancellation of such requirement by the OGS
Commissioner with a corresponding reduction in the Contract quantity
and price.
31.
PRODUCT
DELIVERY
Delivery must be made as ordered to
the address specified on the Purchase Order and in accordance with the
terms of the Contract. Delivery shall be made within 30 calendar days
after receipt of a Purchase Order by the Contractor, unless otherwise
agreed to by the Authorized User and the Contractor. The decision of
the Commissioner as to compliance with delivery terms shall be final.
The burden of proof for delay in receipt of a Purchase Order shall rest
with the Contractor. In all instances of a potential or actual delay in
delivery, the Contractor shall immediately notify the Commissioner
and the Authorized User, and confirm in writing the explanation of the
delay, and take appropriate action to avoid any subsequent late
deliveries. Any extension of time for delivery must be requested in
writing by the Contractor and approved in writing by the Authorized
User. If compliance with the delivery time schedule is a material term
of the Contract, failure to meet such delivery time schedule may be
grounds for cancellation of the order or, in the Commissioner’s
discretion, the Contract.
32.
WEEKEND
AND
HOLIDAY
DELIVERIES
Unless otherwise
specified in the Contract or by an Authorized User, deliveries will be
scheduled for ordinary business hours, Monday through Friday
(excluding legal holidays observed by the State of New York).
Deliveries may be scheduled by mutual agreement for Saturdays,
Sundays or legal holidays observed by the State of New York where
the Product is for daily consumption, an emergency exists, the delivery
is a replacement, delivery is late, or other reasonable circumstance in
which event the convenience of the Authorized User shall govern.
33.
SHIPPING/RECEIPT OF PRODUCT
a.
Packaging
Product shall be securely and properly packed for
shipment, storage and stocking in appropriate, clearly labeled shipping
containers and according to accepted commercial practice, without any
extra charges for packing materials, cases or other types of containers.
The container shall become and remain the property of the Authorized
User unless otherwise specified in the Contract documents.
b.
Shipping
Charges
Unless otherwise stated in the Contract, all
deliveries shall be deemed to be freight on board (F.O.B.) destination
tailgate delivery at the dock of the Authorized User. Unless otherwise
agreed, items purchased at a price F.O.B. shipping point plus
transportation charges shall not relieve the Contractor from
responsibility for safe and proper delivery notwithstanding the
Authorized User’s payment of transportation charges. Contractor shall
be responsible for ensuring that the bill of lading states “charges
prepaid” for all shipments.
c.
Receipt of Product
The Contractor shall be solely responsible
for assuring that deliveries are made to the locations and/or personnel
specified by the Authorized User in the Purchase Order. Any losses or
delays resulting from the Contractor’s failure to deliver Product to the
specified locations or personnel shall be borne exclusively by the
Contractor.
34.
TITLE AND RISK OF LOSS FOR PRODUCTS OTHER
THAN TECHNOLOGY PRODUCTS
Notwithstanding the form of
shipment, title or other property interest, risk of loss for Products other
than technology Products shall not pass from the Contractor to the
Authorized User until the Products have been received, inspected and
accepted by the receiving entity. Acceptance shall occur within a
reasonable time or in accordance with such other defined acceptance
period as may be specified in the Contract or Purchase Order. Mere
acknowledgment by Authorized User personnel of the delivery or
receipt of goods (e.g., signed bill of lading) shall not be deemed or
construed as acceptance of the Products received. Any delivery of
Product that is substandard or does not comply with the Contract may
be rejected or accepted on an adjusted price basis, as determined by the
Commissioner. Title, risk of loss, and acceptance for technology
Products shall be governed by the Product Acceptance clause.
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
8
35.
PRODUCT
SUBSTITUTION
In the event a specified Product
listed in the Contract becomes unavailable or cannot be supplied by
the Contractor for any reason (except as provided for in the
Savings/Force Majeure clause), a Product deemed in writing by the
Commissioner to be equal to or better than the specified Product must
be substituted by the Contractor at no additional cost or expense to the
Authorized User. Unless otherwise specified, any substitution of
Product prior to the Commissioner’s written approval may be cause for
termination of Contract.
36
.
REJECTED
PRODUCT
When Product is rejected, it must be
removed by the Contractor from the premises of the Authorized User
within ten calendar days of notification of rejection by the Authorized
User. Upon notification of rejection, risk of loss of rejected or non-
conforming Product shall remain with Contractor. Rejected items not
removed by the Contractor within ten calendar days of notification
shall be regarded as abandoned by the Contractor, and the Authorized
User shall have the right to dispose of Product as its own property.
The Contractor shall promptly reimburse the Authorized User for any
and all costs and expenses incurred in storage or effecting removal or
disposition after the ten-calendar-day period.
37.
INSTALLATION
Where installation is required, Contractor
shall be responsible for placing and installing the Product in the
required locations. All materials used in the installation shall be of
good quality and shall be free from any and all defects that would mar
the Product or render it unsound. Installation includes the furnishing
of any equipment, rigging and materials required to install or place the
Product in the proper location. The Contractor shall protect the Site
from damage for all its work and shall repair damages or injury of any
kind caused by the Contractor, its employees, officers or agents. If
any alteration, dismantling or excavation, etc. is required to effect
installation, the Contractor shall thereafter promptly restore the
structure or Site. Work shall be performed to cause the least
inconvenience to the Authorized User and with proper consideration
for the rights of other Contractors or workers. The Contractor shall
promptly perform its work and shall coordinate its activities with those
of other Contractors. The Contractor shall clean up and remove all
debris and rubbish from its work as required or directed. Upon
completion of the work, the building and surrounding area of work
shall be left clean and in a neat, unobstructed condition, and
everything in satisfactory repair and order.
38.
REPAIRED OR REPLACED PRODUCTS, PARTS, OR
COMPONENTS
Where the Contractor is required to repair, replace
or substitute Product or parts or components of the Product under the
Contract, the repaired, replaced or substituted Products shall be subject
to all terms and conditions for new parts and components set forth in
the Contract including warranties, as set forth in the Warranties clause
herein. Replaced or repaired Product or parts and components of such
Product shall be new and shall, if available, be replaced by the original
manufacturer’s component or part. Remanufactured parts or components
meeting new Product standards may be permitted by the Commissioner or
Authorized User. Before installation, all proposed substitutes for the
original manufacturers’ installed parts or components must be approved
by the Authorized User. The part or component shall be equal to or of
better quality than the original part or component being replaced.
39.
EMPLOYEES, SUBCONTRACTORS AND AGENTS
All
employees, Subcontractors, or agents of the Contractor performing work
under the Contract must be trained staff or technicians who meet or
exceed the professional, technical, and training qualifications set forth in
the Contract or the Purchase Order, and must comply with all security and
administrative requirements of the Authorized User that are
communicated to the Contractor. The Commissioner and the Authorized
User reserve the right to conduct a security background check or
otherwise approve any employee, Subcontractor, or agent furnished by
Contractor and to refuse access to or require replacement of any personnel
for cause based on professional, technical or training qualifications,
quality of work or change in security status or non-compliance with
Authorized User’s security or other requirements. Such approval shall
not relieve the Contractor of the obligation to perform all work in
compliance with the Contract or the Purchase Order. The Commissioner
and the Authorized User reserve the right to reject and/or bar from any
facility for cause any employee, Subcontractor, or agent of the Contractor.
40.
ASSIGNMENT
In accordance with Section 138 of the State
Finance Law, the Contractor shall not assign, transfer, convey, sublet,
or otherwise dispose of the Contract or its right, title or interest therein,
or its power to execute such Contract to any other person, company,
firm or corporation in performance of the Contract without the prior
written consent of the Commissioner or Authorized User (as
applicable); provided, however, any consent shall not be unreasonably
withheld, conditioned, delayed or denied. The Commissioner may
waive the requirement that such consent be obtained in advance where
the Contractor verifies that the assignment, transfer, conveyance,
sublease, or other disposition is due to, but not necessarily limited to, a
reorganization, merger, or consolidation of the Contractor’s business
entity or enterprise.
Notwithstanding the foregoing, the State shall not hinder, prevent or
affect assignment of money by a Contractor for the benefit of its
creditors. Prior to a consent to assignment of monies becoming
effective, the Contractor shall file a written notice of such monies
assignments with the State Comptroller. Prior to a consent to
assignment of a Contract, or portion thereof, becoming effective, the
Contractor shall submit the request for assignment to the
Commissioner and seek written agreement from the Commissioner
which will be filed with the State Comptroller. Commissioner shall use
reasonable efforts to promptly respond to any request by Contractor
for an assignment, provided that Contractor supplies sufficient
information about the party to whom the Contractor proposes to assign
the Contract.
Upon notice to the Contractor, the Contract may be assigned without
the consent of the Contractor to another State Agency or subdivision
of the State pursuant to a governmental reorganization or assignment
of functions under which the functions are transferred to a successor
Agency or to another Agency that assumes OGS responsibilities for
the Contract.
41.
SUBCONTRACTORS AND SUPPLIERS
The Commissioner
reserves the right to reject any proposed Subcontractor or supplier for
bona fide business reasons, including, but not limited to: the company
failed to solicit New York State certified minority- and women-owned
business enterprises as required in prior OGS Contracts; the fact that
such Subcontractor or supplier is on the New York State Department
of Labor’s list of companies with which New York State cannot do
business; the Commissioner’s determination that the company is not
qualified or is not responsible; or the fact that the company has
previously provided unsatisfactory work or services.
42.
SUSPENSION OF WORK
The Commissioner, in his or her
sole discretion, reserves the right to suspend any or all activities under
the Contract, at any time, in the best interests of the Authorized User.
In the event of such suspension, the Contractor will be given a formal
written notice outlining the particulars of such suspension. Examples
of the reason for such suspension include, but are not limited to, a
budget freeze or reduction in State spending, declaration of
emergency, contract compliance issues or other circumstances. Upon
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
9
issuance of such notice, the Contractor is not to accept any Purchase
Orders, and shall comply with the suspension order. Activity may
resume at such time as the Commissioner issues a formal written
notice authorizing a resumption of performance under the Contract.
An Authorized User may issue a formal written notice for the
suspension of work for which it has engaged the Contractor for
reasons specified in the above paragraph. The written notice shall set
forth the reason for such suspension and a copy of the written notice
shall be provided to the Commissioner.
43
.
TERMINATION
a.
For
Cause
For a material breach that remains uncured for more
than 30 calendar days or other longer period as specified by written notice
to the Contractor, the Contract or Purchase Order may be terminated by
the Commissioner or Authorized User respectively. Neither the State
nor an Authorized User shall be liable for any of Contractor’s costs
arising from the failure to perform or the termination, including
without limitation costs incurred after the date of termination. Such
termination shall be upon written notice to the Contractor. In such
event, the Commissioner or Authorized User may complete the
contractual requirements in any manner it may deem advisable and
pursue available legal or equitable remedies for breach.
b.
For
Convenience
This Contract may be terminated at any time by
the Commissioner for convenience upon 60 calendar days or other longer
period as specified by written notice, without penalty or other early
termination charges due. Such termination of the Contract shall not
affect any project or Purchase Order that has been issued under the
Contract prior to the date of such termination. If the Contract is
terminated pursuant to this subdivision, the Authorized User shall
remain liable for all accrued but unpaid charges incurred through the
date of the termination. Contractor shall use due diligence and fulfill
any outstanding Purchase Orders.
c.
For Violation of Sections 139-j and 139-k of the State Finance
Law
The Commissioner reserves the right to terminate the Contract in
the event it is found that the certification filed by the Bidder in
accordance with Section 139-k of the State Finance Law was
intentionally false or intentionally incomplete. Upon such finding, the
Commissioner may exercise his or her termination right by providing
written notification to the Contractor in accordance with the written
notification terms of the Contract.
d.
For Violation of Section 5-a of the New York State Tax Law
The Commissioner reserves the right to terminate the Contract in the
event it is found that the certification filed by the Contractor in
accordance with Section 5-a of the Tax Law is not timely filed during
the term of the Contract or the certification furnished was intentionally
false or intentionally incomplete. Upon such finding, the
Commissioner may exercise his or her termination right by providing
written notification to the Contractor in accordance with the written
notification terms of the Contract.
e.
For Non-Responsibility
The Bidder agrees that if it is found by
the State that the Bidder’s responses to the Vendor Responsibility
Questionnaire were intentionally false
or intentionally incomplete, on
such finding, the Commissioner may terminate the Contract.
Upon written notice to the Contractor, and a reasonable opportunity to
be heard with appropriate OGS officials or staff, the Contract may be
terminated by the Commissioner at the Contractor’s expense where the
Contractor is determined by the Commissioner to be non-responsible.
In such event, the Commissioner may complete the contractual
requirements in any manner he or she may deem advisable and pursue
available legal or equitable remedies for breach.
In no case shall such termination of the Contract by the State be
deemed a breach thereof, nor shall the State be liable for any damages
for lost profits or otherwise, which may be sustained by the Contractor
as a result of such termination.
f.
Upon Conviction of Certain Crimes
The Commissioner
reserves the right to terminate the Contract in the event it is found that
a member, partner, director or officer of Contractor is convicted of one
or more of the following: Bribery Involving Public Servants and
Related Offenses as defined in Article 200 of the New York State
Penal Law; Corrupting the Government as defined in Article 496 of
the New York State Penal Law; or Defrauding the Government as
defined in Section 195.20 of the New York State Penal Law.
44.
SAVINGS/FORCE MAJEURE
A force majeure occurrence is
an event or effect that cannot be reasonably anticipated or controlled
and is not due to the negligence or willful misconduct of the affected
party. Force majeure includes, but is not limited to, acts of God, acts
of war, acts of public enemies, terrorism, strikes, fires, explosions,
actions of the elements, floods, or other similar causes beyond the
control of the Contractor or the Commissioner in the performance of
the Contract where non-performance, by exercise of reasonable
diligence, cannot be prevented.
The affected party shall provide the other party with written notice of
any force majeure occurrence as soon as the delay is known and
provide the other party with a written contingency plan to address the
force majeure occurrence, including, but not limited to, specificity on
quantities of materials, tooling, people, and other resources that will
need to be redirected to another facility and the process of redirecting
them. Furthermore, the affected party shall use its commercially
reasonable efforts to resume proper performance within an appropriate
period of time. Notwithstanding the foregoing, if the force majeure
condition continues beyond 30 days, the parties to the Contract shall
jointly decide on an appropriate course of action that will permit
fulfillment of the parties’ objectives under the Contract.
The Contractor agrees that in the event of a delay or failure of
performance by the Contractor under the Contract due to a force
majeure occurrence:
a.
The Commissioner may purchase from other sources
(without recourse to and by the Contractor for the costs and
expenses thereof) to replace all or part of the Products which are
the subject of the delay, which purchases may be deducted from
the Contract quantities without penalty or liability to the State, or
b.
The Contractor will provide Authorized Users with access to
Products first in order to fulfill orders placed before the force
majeure event occurred. The Commissioner agrees that
Authorized Users shall accept allocated performance or
deliveries during the occurrence of the force majeure event.
Neither the Contractor nor the Commissioner shall be liable to the
other for any delay in or failure of performance under the Contract due
to a force majeure occurrence. Any such delay in or failure of
performance shall not constitute default or give rise to any liability for
damages. The existence of such causes of such delay or failure shall
extend the period for performance to such extent as determined by the
Contractor and the Commissioner to be necessary to enable complete
performance by the Contractor if reasonable diligence is exercised
after the cause of delay or failure has been removed.
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
10
Notwithstanding the above, at the discretion of the Commissioner
where the delay or failure will significantly impair the value of the
Contract to the State or to Authorized Users, the Commissioner may
terminate the Contract or the portion thereof which is subject to delays,
and thereby discharge any unexecuted portion of the Contract or the
relative part thereof.
In addition, the Commissioner reserves the right, in his or her sole
discretion, to make an equitable adjustment in the Contract terms
and/or pricing should extreme and unforeseen volatility in the
marketplace affect pricing or the availability of supply. “Extreme and
unforeseen volatility in the marketplace” is defined as market
circumstances which meet the following criteria: (i) the volatility is
due to causes outside the control of Contractor; (ii) the volatility
affects the marketplace or industry, not just the particular Contract
source of supply; (iii) the effect on pricing or availability of supply is
substantial; and (iv) the volatility so affects Contractor’s performance
that continued performance of the Contract would result in a
substantial loss to the Contractor. In the event of a dispute between
the Contractor and the Commissioner, such dispute shall be resolved in
accordance with the OGS Dispute Resolution Procedures; provided,
however, that nothing in this clause shall excuse the Contractor from
performing in accordance with the Contract as changed.
45.
CONTRACT INVOICING
a.
Invoicing
Contractor and the dealers/distributors/resellers
designated by the Contractor, if any, shall provide complete and
accurate billing invoices to each Authorized User in order to receive
payment. Billing invoices submitted to an Authorized User must
contain all information required by the Contract and the State
Comptroller or other appropriate fiscal officer.
Contractor shall provide, upon request of the Commissioner, any and
all information necessary to verify the accuracy of the billings. Such
information shall be provided in a commercially reasonable manner as
requested by the Commissioner. The Commissioner may direct the
Contractor to provide the information to the State Comptroller or to
any Authorized User of the Contract.
b.
Payment of Contract Purchases made by an Authorized User
when the State Comptroller is responsible for issuing such
payment
The Authorized User and Contractor agree that payments
for invoices submitted by the Contractor shall only be rendered
electronically unless payment by paper check is expressly authorized
by the Commissioner, in the Commissioner’s sole discretion, due to
extenuating circumstances. Such electronic payments shall be made in
accordance with ordinary State procedures and practices. The
Contractor shall comply with the State Comptroller’s procedures to
authorize electronic payments. Authorization forms are available at
the State Comptroller website at
www.osc.state.ny.us
, by e-mail at
HelpDesk@sfs.ny.gov
, or by telephone at (518) 457-7737 or toll free
(877) 737-4185. Contractor acknowledges that it will not receive
payment on any invoices submitted under this Contract that are
payable by the State Comptroller if it does not comply with the State
Comptroller’s electronic payment procedures, except where the
Commissioner has expressly authorized payment by paper check as set
forth above.
c.
Payment of Contract Purchases made by an Authorized User
when the State Comptroller is not responsible for issuing such
payment
The Authorized User and Contractor agree that payments
for such Contract purchases shall be billed directly by Contractor on
invoices/vouchers, together with complete and accurate supporting
documentation as required by the Authorized User. Such payments
shall be as mandated by the appropriate governing law from the receipt
of a proper invoice. Such Authorized User and Contractor are strongly
encouraged to establish electronic payments.
46.
DEFAULT – AUTHORIZED USER
a.
Breach by Authorized User
An Authorized User’s breach shall
not be deemed a breach of the Centralized Contract; rather, it shall be
deemed a breach of the Authorized User’s performance under the
terms and conditions of the Centralized Contract.
b.
Failure to Make Payment
In the event a participating
Authorized User fails to make payment to the Contractor for Products
delivered, accepted and properly invoiced, within 30 calendar days of
such delivery and acceptance, the Contractor may, upon five business
days advance written notice to both the Commissioner and the
Authorized User’s purchasing official, suspend additional provision of
Products to such entity until such time as reasonable arrangements
have been made and assurances given by such entity for current and
future Contract payments.
c.
Notice of Breach
Notwithstanding the foregoing, the Contractor
shall, at least 10 business days prior to declaring a breach of Contract
by any Authorized User, by certified or registered mail, notify both the
Commissioner and the purchasing official of the breaching Authorized
User of the specific facts, circumstances and grounds upon which a
breach will be declared.
d.
Insufficient basis
If the Contractor’s basis for declaring a breach
is insufficient, the Contractor’s declaration of breach and failure to
provide Products to an Authorized User may constitute a breach of the
Contract, and the Authorized User may thereafter seek any remedy
available at law or equity.
47. PROMPT PAYMENTS
a.
By State
Agencies
Upon acceptance of Product or as otherwise
provided by Contract, Contractor may invoice for payment. The
required payment date shall be 30 calendar days, excluding legal
holidays, from the receipt of a proper invoice, as determined in
accordance with State Finance Law Section 179-f(2) and 2 NYCRR
Part 18. The payment of interest on certain payments due and owed by
the State Agency may be made in accordance with State Finance Law
Sections 179-d et seq. and the implementing regulations (2 NYCRR
§ 18.1 et seq.).
b.
By
Non
-
State
Agencies
Upon acceptance of Product or as
otherwise provided by Contract, Contractor may invoice for payment.
The required payment date shall be 30 calendar days, excluding legal
holidays, or as mandated by the appropriate governing law from the
receipt of a proper invoice. The terms of Article 11-A of the State
Finance Law apply only to procurements by and the consequent
payment obligations of State Agencies. Neither expressly nor by any
implication is the statute applicable to non-State agency Authorized
Users. Neither OGS nor the State Comptroller is responsible for
payments on any purchases made by a non-State agency Authorized
User.
c.
By
Contractor
Should the Contractor be liable for any payments
to the State hereunder, interest, late payment charges and collection fee
charges will be determined and assessed pursuant to Section 18 of the
State Finance Law.
48.
REMEDIES FOR BREACH
Unless otherwise specified by the
Authorized User in a Mini-Bid or Purchase Order, in the event that
Contractor fails to observe or perform any term or condition of the
Contract and such failure remains uncured after 15 calendar days
following written notice by the Commissioner or an Authorized User,
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
11
the Commissioner or an Authorized User may exercise all rights and
remedies available at law or in equity. Notwithstanding the foregoing,
if such failure is of a nature that it cannot be cured completely within
15 calendar days and Contractor shall have commenced its cure of
such failure within such period and shall thereafter diligently prosecute
all steps necessary to cure such failure, such 15-day period may, in the
sole discretion of the Commissioner or the Authorized User, be
extended for a reasonable period in no event to exceed 60 calendar
days. It is understood and agreed that the rights and remedies
available to the Commissioner and Authorized Users in the event of
breach shall include but not be limited to the following:
a.
Cover
/
Substitute
Performance
In the event of Contractor’s
material, uncured breach, the Commissioner or Authorized User may,
with or without issuing a formal Solicitation: (i) purchase from other
sources; or (ii) if the Commissioner or Authorized User is unsuccessful
after making reasonable attempts, under the circumstances then-
existing, to timely obtain acceptable replacement Product of equal or
comparable quality, the Commissioner or Authorized User may
acquire acceptable replacement Product of lesser or greater quality.
Such purchases may be deducted from the Contract quantity without
penalty or liability to the State.
b.
Withhold
Payment
In any case where a reasonable question of
material, uncured non-performance by Contractor arises, payment may
be withheld in whole or in part at the discretion of the Authorized
User.
c.
Bankruptcy
In the event that the Contractor files, or there is
filed against Contractor, a petition under the U.S. Bankruptcy Code
during the term of this Centralized Contract, Authorized Users may, at
their discretion, make application to exercise their right to set-off
against monies due the debtor or, under the doctrine of recoupment, be
credited the amounts owed by the Contractor arising out of the same
transactions.
d.
Reimbursement
of
Costs
Incurred
The Contractor agrees to
reimburse the Authorized User promptly for any and all additional
costs and expenses incurred for acquiring acceptable replacement
Product. Should the cost of cover be less than the Contract price, the
Contractor shall have no claim to the difference. The Contractor
covenants and agrees that in the event suit is successfully prosecuted
for any default on the part of the Contractor, all costs and expenses,
including reasonable attorney’s fees, shall be paid by the Contractor.
Where the Contractor fails to timely deliver pursuant to the guaranteed
delivery terms of the Contract, the ordering Authorized User may
obtain replacement Product temporarily and the cost of the
replacement Product shall be deducted from the Contract quantity
without penalty or liability to the State.
e.
Deduction
/
Credit
Sums due as a result of these remedies may
be deducted or offset by the Authorized User from payments due, or to
become due, the Contractor on the same or another transaction. If no
deduction or only a partial deduction is made in such fashion the
Contractor shall pay to the Authorized User the amount of such claim
or portion of the claim still outstanding, on demand. The
Commissioner reserves the right to determine the disposition of any
rebates, settlements, restitution, damages, etc., that arise from the
administration of the Contract.
49.
ASSIGNMENT OF CLAIM
Contractor hereby assigns to the
State any and all claims for overcharges associated with this Contract
that may arise under the antitrust laws of the United States, 15 USC
Section 1, et seq. and the antitrust laws of the State of New York,
General Business Law Section 340, et seq.
50.
TOXIC SUBSTANCES
Each Contractor furnishing a toxic
substance, as defined by Section 875 of the Labor Law, shall provide
such Authorized User with not less than two copies of a Safety Data
Sheet, which sheet shall include for each such substance the
information outlined in Section 876 of the Labor Law.
Before any chemical product is used or applied on or in any building, a
copy of the product label and Safety Data Sheet must be provided to and
approved by the Authorized User.
51.
INDEPENDENT CONTRACTOR
It is understood and agreed
that the legal status of the Contractor, its Subcontractors, agents, officers
and employees under this Contract is that of an independent contractor,
and in no manner shall they be deemed employees of the Authorized
User, and therefore are not entitled to any of the benefits associated with
such employment.
52.
SECURITY
Contractor warrants, covenants and represents that,
in the performance of the Contract, Contractor, its agents,
Subcontractors, officers, distributors, resellers and employees will
comply fully with all security procedures of the Authorized User set
forth in the Contract or Purchase Order or otherwise communicated in
advance to the Contractor including but not limited to physical,
facility, documentary and cyber security rules, procedures and
protocols.
53.
COOPERATION WITH THIRD PARTIES
The Contractor
shall be responsible for fully cooperating with any third party,
including but not limited to other Contractors or Subcontractors of the
Authorized User, as necessary to ensure delivery or performance of
Product.
54.
WARRANTIES
a.
Product
Performance
Contractor hereby warrants and
represents that the Products acquired by the Authorized User under
this Contract conform to the manufacturer’s specifications,
performance standards and Documentation and that the
Documentation fully describes the proper procedure for using the
Products.
b.
Title and Ownership
Contractor warrants and represents that it
has (i) full ownership, clear title free of all liens, or (ii) the right to
transfer or deliver specified license rights to any Products acquired by
Authorized User under this Contract. Contractor shall be solely liable
for any costs of acquisition associated therewith. Contractor shall
indemnify Authorized Users and hold Authorized Users harmless from
any damages and liabilities (including reasonable attorneys’ fees and
costs) arising from any breach of Contractor’s warranties as set forth
herein.
c.
Product Warranty
Contractor further warrants and represents
that Products, components or parts specified and furnished by or
through Contractor, whether specified and furnished individually or as
a system, shall be substantially free from defects in material and
workmanship and will conform to all requirements of the Contract for
the manufacturer’s standard commercial warranty period, if
applicable, or for a minimum of one year from the date of acceptance,
whichever is longer (the “Product warranty period”).
During the Product warranty period, defects in the materials or
workmanship of Products, components, or parts specified and
furnished by or through Contractor, whether specified and furnished
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
12
individually or as a system, shall be repaired or replaced by
Contractor at no cost or expense to the Authorized User. Contractor
shall extend the Product warranty period for individual Products, or
for the system as a whole, as applicable, by the cumulative periods of
time, after notification, during which an individual Product, or the
system as a whole, requires repairs or replacement resulting in down
time or is in the possession of the Contractor, its agents, officers,
Subcontractors, distributors, resellers or employees (“extended
warranty”).
Any component or part replaced by the Contractor under the Contract
warranties shall be guaranteed for the greater of: (i) the Product
warranty period set forth herein; or (ii) the manufacturer’s standard
commercial warranty period offered for the component or part, if
applicable.
All costs for materials, labor, and transportation incurred to repair or
replace Products, parts, components, or systems as a whole during the
warranty period shall be borne solely by the Contractor, and the State
or Authorized User shall in no event be liable or responsible therefor.
Where Contractor, the Third-Party Software vendor, or other third-
party manufacturer markets any Product delivered by or through
Contractor with a standard commercial warranty, such standard
warranty shall be in addition to, and not relieve the Contractor from,
Contractor’s warranty obligations during the Product warranty and
extended warranty periods. Where such standard commercial
warranty covers all or some of the Product warranty or extended
warranty periods, Contractor shall be responsible for the coordination
during the Product warranty or extended warranty periods with Third-
Party Software vendor or other third-party manufacturers for warranty
repair or replacement of Third-Party Software vendor or other third-
party manufacturer’s Product.
Where Contractor, Third-Party Software vendor, or other third-party
manufacturer markets any Product with a standard commercial
warranty that goes beyond the Product warranty or extended warranty
periods, Contractor shall notify the Authorized User and pass through
the standard commercial warranty to Authorized User at no additional
charge; provided, however, that Contractor shall not be responsible for
coordinating services under the standard commercial warranty after
expiration of the Product warranty and extended warranty periods.
Unless recycled, recyclable, or recovered materials are available in
accordance with the Remanufactured, Recycled, Recyclable, or
Recovered Materials clause, Product offered shall be standard new
equipment, current model or most recent release of regular stock
product with all parts regularly used with the type of equipment
offered. Contractor further warrants and represents that no component
or part has been substituted or applied contrary to the manufacturer’s
recommendations and standard practice.
Contractor shall not be responsible for any modification of the
Products made by an Authorized User without Contractor’s approval.
d.
Virus
Warranty
The Contractor represents and warrants that
any Product acquired under the Contract by the Authorized User does
not contain any known Viruses. Contractor is not responsible for
Viruses introduced at an Authorized User’s Site.
e.
Date/Time Warranty
Contractor warrants that Product furnished
pursuant to this Contract shall, when used in accordance with the Product
Documentation, be able to accurately process date/time data (including,
but not limited to, calculating, comparing, and sequencing) transitions,
including leap year calculations. Where a Contractor proposes or an
acquisition requires that specific Products must perform as a package or
system, this warranty shall apply to the Products as a system.
Where Contractor is providing ongoing services, including but not limited
to: (i) consulting, integration, code or data conversion, (ii) maintenance
or support services, (iii) data entry or processing, or (iv) contract
administration services (e.g., billing, invoicing, claim processing),
Contractor warrants that services shall be provided in an accurate and
timely manner without interruption, failure or error due to the inaccuracy
of Contractor’s business operations in processing date/time data
(including, but not limited to, calculating, comparing, and sequencing)
various date/time transitions, including leap year calculations. Contractor
shall be responsible for damages resulting from any delays, errors or
untimely performance resulting therefrom, including but not limited to the
failure or untimely performance of such services.
f.
Workmanship Warranty
Contractor warrants that the services
acquired under this Contract will be provided in a professional and
workmanlike manner in accordance with the applicable industry
standards, if any. The Authorized User must notify Contractor of any
services warranty deficiencies within 90 calendar days from
performance of the services that gave rise to the warranty claim.
g.
Survival of Warranties
All warranties contained in this
Contract shall survive the termination of this Contract.
h.
Prompt Notice of Breach
The Authorized User shall promptly
notify the Contactor and the Commissioner in writing of any claim of
breach of any warranty provided herein.
i.
Additional Warranties
Where Contractor, Product
manufacturer or service provider generally offers additional or more
advantageous warranties than those set forth herein, Contractor shall
offer or pass through any such warranties to Authorized Users.
j.
No Limitation of Rights
The rights and remedies of the State
and the Authorized Users provided in this clause are in addition to and
do not limit any rights afforded to the State and the Authorized Users
by any other clause of the Contract.
55.
LEGAL COMPLIANCE
Contractor represents and warrants
that it shall secure all notices and comply with all applicable laws,
ordinances, rules and regulations of any governmental entity in
conjunction with the performance of obligations under the Contract.
Prior to award and during the Contract term and any extensions
thereof, Contractor must establish to the satisfaction of the
Commissioner that it meets or exceeds all requirements of the
Solicitation and Contract and any applicable laws, including but not
limited to, permits, licensing, and shall provide such proof as required
by the Commissioner. Failure to comply or failure to provide proof
may constitute grounds for the Commissioner to terminate or suspend
the Contract, in whole or in part, or to take any other action deemed
necessary by the Commissioner. Contractor also agrees to disclose
information and provide affirmations and certifications to comply with
Sections 139-j and 139-k of the State Finance Law.
56.
INDEMNIFICATION
Contractor shall be fully liable for the
actions of its agents, employees, partners or Subcontractors and shall
fully defend, indemnify and hold the Authorized Users harmless from
suits, actions, proceedings, claims, losses, damages, and costs
(including reasonable attorney fees) of every name and description
relating to personal injury and damage to real or personal tangible
property caused by any intentional act or negligence of Contractor, its
agents, employees, partners or Subcontractors, which shall arise from
or result directly or indirectly from this Contract, without limitation;
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
13
provided, however, that the Contractor shall not be obligated to
indemnify an Authorized User for any claim, loss or damage arising
hereunder to the extent caused by the negligent act, failure to act,
gross negligence or willful misconduct of the Authorized User.
The Authorized User shall give Contractor: (i) prompt written notice
of any action, claim or threat of suit, or other suit for which Contractor
is required to fully indemnify an Authorized User, (ii) the opportunity
to take over, settle or defend such action, claim or suit at Contractor’s
sole expense, and (iii) assistance in the defense of any such action,
claim or suit at the expense of Contractor. Notwithstanding the
foregoing, the State reserves the right to join such action, at its sole
expense, if it determines there is an issue involving a significant public
interest.
In the event that an action or proceeding at law or in equity is
commenced against the Authorized User arising out of a claim for
death, personal injury or damage to real or personal tangible property
caused by any intentional or willful act, gross negligence, or
negligence of Contractor, its agents, employees, partners or
Subcontractors, which shall arise from or result directly or indirectly
from the Products supplied under this Contract, and Contractor is of
the opinion that the allegations in such action or proceeding in whole
or in part are not covered by the indemnification and defense
provisions set forth in the Contract, Contractor shall immediately
notify the Authorized User and the New York State Office of the
Attorney General in writing and shall specify to what extent
Contractor believes it is obligated to defend and indemnify under the
terms and conditions of the Contract and to what extent it is not so
obligated to defend and indemnify. Contractor shall in such event
protect the interests of the Authorized User and attempt to secure a
continuance to permit the State and the Authorized User to appear and
defend their interests in cooperation with Contractor, as is appropriate,
including any jurisdictional defenses the State and Authorized User
may have. In the event of a dispute regarding the defense, the
Contractor and the Attorney General shall try to reach an amicable
resolution, but the Attorney General shall have the final determination
on such matters.
57.
INDEMNIFICATION RELATING TO INFRINGEMENT
The Contractor shall also defend, indemnify and hold the Authorized
Users harmless from all suits, actions, proceedings, claims, losses,
damages, and costs of every name and description (including
reasonable attorney fees), relating to a claim of infringement of a
patent, copyright, trademark, trade secret or other proprietary right
provided such claim arises solely out of the Products as supplied by
the Contractor, and not out of any modification to the Products made
by the Authorized User or by someone other than Contractor at the
direction of the Authorized User without Contractor’s approval;
provided, however, that the Contractor shall not be obligated to
indemnify an Authorized User for any claim, loss or damage arising
hereunder to the extent caused by the negligent act, failure to act, gross
negligence or willful misconduct of the Authorized User.
The Authorized User shall give Contractor: (i) prompt written notice
of any action, claim or threat of suit alleging infringement, (ii) the
opportunity to take over, settle or defend such action, claim or suit at
Contractor’s sole expense, and (iii) assistance in the defense of any
such action, claim or suit at the expense of Contractor.
Notwithstanding the foregoing, the State reserves the right to join such
action, at its sole expense, if it determines there is an issue involving a
significant public interest.
If usage of a Product shall be enjoined for any reason or if Contractor
believes that it may be enjoined, Contractor shall have the right, at its
own expense and sole discretion to take action in the following order
of precedence: (i) to procure for the Authorized User the right to
continue usage (ii) to modify the service or Product so that usage
becomes non-infringing, and is of at least equal quality and
performance; or (iii) to replace such Product or parts thereof, as
applicable, with non-infringing Product of at least equal quality and
performance. If the above remedies are not available, the parties shall
terminate the Contract, in whole or in part as necessary and applicable,
provided that the Authorized User is given a refund for any amounts
paid for the period during which usage was not feasible.
In the event that an action or proceeding at law or in equity is
commenced against the Authorized User arising out of a claim that the
Authorized User’s use of the Product under the Contract infringes any
patent, copyright, trademark, trade secret or proprietary right, and
Contractor is of the opinion that the allegations in such action or
proceeding in whole or in part are not covered by the indemnification
and defense provisions set forth in the Contract, Contractor shall
immediately notify the Authorized User and the New York State
Office of the Attorney General in writing and shall specify to what
extent Contractor believes it is obligated to defend and indemnify
under the terms and conditions of the Contract and to what extent it is
not so obligated to defend and indemnify. Contractor shall in such
event protect the interests of the Authorized User and attempt to secure
a continuance to permit the State and the Authorized User to appear
and defend their interests in cooperation with Contractor, as is
appropriate, including any jurisdictional defenses the State and
Authorized User may have. In the event of a dispute regarding the
defense, the Contractor and the Attorney General shall try to reach an
amicable resolution, but the Attorney General shall have the final
determination on such matters. This constitutes the Authorized User’s
sole and exclusive remedy for infringement of a patent, copyright,
trademark, trade secret, or other proprietary right.
58.
LIMITATION OF LIABILITY
Except as otherwise set forth
in the Indemnification clause and the Indemnification Relating to
Infringement clause, the limit of liability shall be as follows:
a.
Contractor’s liability for any claim, loss or liability arising out of,
or connected with the Products provided, and whether based upon
default, or other liability such as breach of contract, warranty,
negligence, misrepresentation or otherwise, shall in no case exceed
direct damages in: (i) an amount equal to two (2) times the charges
specified in the Purchase Order for the Products forming the basis of
the Authorized User’s claim or (ii) five hundred thousand dollars
($500,000), whichever is greater.
b.
The Authorized User may retain such monies from any amount
due Contractor as may be necessary to satisfy any claim for damages,
costs and the like asserted against the Authorized User unless
Contractor at the time of the presentation of claim shall demonstrate to
the Authorized User’s satisfaction that sufficient monies are set aside
by the Contractor in the form of a bond or through insurance coverage
to cover associated damages and other costs.
c.
Notwithstanding the above, neither the Contractor nor the
Authorized User shall be liable for any consequential, indirect or
special damages of any kind which may result directly or indirectly
from such performance, including, without limitation, damages
resulting from loss of use or loss of profit by the Authorized User, the
Contractor, or by others.
59. DISPUTE RESOLUTION PROCEDURES
It is the policy of OGS to provide interested parties, as defined in the
OGS Dispute Resolution Procedures, with an opportunity to
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
14
administratively resolve disputes, complaints or inquiries related to
Solicitations, contract awards and contract administration. OGS
encourages interested parties to seek resolution of disputes through
consultation with OGS staff. All such matters shall be accorded
impartial and timely consideration. Interested parties may also file
formal written disputes. A copy of the OGS Dispute Resolution
Procedures may be obtained by contacting the designated contact for
the Solicitation, the Contract manager, or at the OGS website. OGS
reserves the right to change the procedures set forth in the Dispute
Resolution Procedures without seeking a Contract amendment.
To the extent the scope of the Solicitation or Contract includes the
sale, development, maintenance, or use of information technology
Products such as software, computer components, systems, or
networks for the processing, and distribution, or storage, or storage
of data, the following clauses shall govern, as applicable.
60.
SOFTWARE LICENSE GRANT
Where Product is acquired
on a licensed basis the following shall constitute the license grant:
a.
License Scope
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 stated on the Purchase Order. Product
may be accessed, used, executed, reproduced, displayed or performed up
to the capacity measured by the applicable licensing unit stated on the
Purchase Order (e.g., payroll size, number of employees, CPU, MIPS,
MSU, concurrent user, workstation, virtual partition). Licensee shall
have the right to use those modifications or customizations of the
Product that have been purchased by Licensee and to distribute such
modifications or customizations for use by any Authorized Users
otherwise licensed to use the Product, provided that any modifications
or customizations, however extensive, shall not diminish Licensor’s
proprietary title or interest. No license, right or interest in any
trademark, trade name, or service mark is granted hereunder.
Licensee and Contractor may agree to alternative licensing rights (e.g.,
subscription, term, virtual) for specific Products used by the
Contractor in performing the services, provided such agreement is
reached prior to Bid, Mini-Bid, RFQ, or Contract award, as applicable.
Such licensing rights will be specified in an applicable Purchase Order
or other document approved by Licensee and Contractor.
b.
License Term
The license term shall commence upon the
License Effective Date, provided, however, that where an acceptance
or trial period applies to the Product, the license term shall be extended
by the time period for testing, acceptance or trial.
c.
Product Documentation
Contractor shall provide Product
Documentation electronically to Licensee at no charge. If Product
Documentation is made available to customers in hard copy,
Contractor shall provide at no charge one hard copy.
Contractor hereby grants to Licensee a non-exclusive, fully paid-up,
royalty-free perpetual license in the Product Documentation to make,
reproduce, and distribute, either electronically or otherwise, copies of
the Product Documentation as necessary to enjoy full use of the
Product in accordance with the Contract.
d.
Product Technical Support & Maintenance
Licensee shall
have the option of electing the Product technical support and
maintenance (“maintenance”) set forth in the Contract by giving
written notice to Contractor any time during the Centralized Contract
term. Contractor shall fully disclose all terms and conditions of
maintenance available to Licensee, including the extent to which
updates, upgrades, revisions, and new releases are included in
maintenance. Maintenance terms and any renewals thereof are
independent of the expiration of the Centralized Contract term and
shall not automatically renew.
Unless otherwise provided by written agreement between the
Contractor and Licensee, maintenance offered shall include, at a
minimum, (i) the provision of Error Corrections, updates,
enhancements, revisions, Patches, and upgrades to Licensee, and (ii)
help desk assistance at no additional cost, either by toll-free telephone
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
15
or on-line functionality. Contractor shall maintain the Product so as to
provide Licensee with the ability to utilize the Product in accordance
with the Product Documentation without significant functional
downtime to its ongoing business operations during the maintenance
term.
Licensee shall not be required to purchase maintenance for use of
Product, and may discontinue maintenance at the end of any current
maintenance term upon notice to Contractor. In the event that
Licensee does not initially acquire or discontinues maintenance of
licensed Product, it may, at any time thereafter, reinstate maintenance
for Product without any additional penalties or other charges, by
paying Contractor the amount that would have been due under the
Contract for the period of time that such maintenance had lapsed, at
then current NYS net maintenance rates. Contractor shall submit
written notification to Licensees of the upcoming maintenance end
date no later than 60 calendar days prior to such maintenance end date.
e.
Permitted License Transfers
As Licensee’s business operations
may be altered, expanded or diminished, licenses granted hereunder
may be transferred or combined for use at an alternative or
consolidated Site not originally specified in the license, including
transfers within Agencies, between Agencies, and pursuant to
governmental restructuring or reorganization (“permitted license
transfers”). Licensees do not have to obtain the approval of Contractor
for permitted license transfers, but must give 30 days prior written
notice to Contractor of such moves and certify in writing that the
Product is not in use at the prior Site. There shall be no additional
license or other transfer fees due Contractor, 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
(ii) 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 so as to restrict use and access
to the Product to that unit of licensed capacity solely dedicated to
beneficial use for Licensee. In the event that 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 Contractor shall not exceed
the fees otherwise payable for a single license for the upgrade
capacity.
f.
Restricted Use By Third Parties
Third parties retained by
Licensee shall have the right to use the Product to maintain Licensee’s
business operations, including data processing, for the time period that
they are engaged in such activities, provided that: (i) Licensee gives
notice to Contractor of such third party, Site of intended use of the
Product, and means of access; and (ii) such third party has executed, or
agrees to execute, the Product manufacturer’s standard nondisclosure
or restricted use agreement, which executed agreement shall be
accepted by the Contractor (“Non-Disclosure Agreement”); and (iii)
such third party maintains a logical or physical partition within its
computer system so as to restrict use and access to the program to that
portion solely dedicated to beneficial use for Licensee. In no event
shall Licensee assume any liability for third party’s compliance with
the terms of the Non-Disclosure Agreement, nor shall the Non-
Disclosure Agreement create or impose any liabilities on the State or
Licensee.
g.
Archival Back-Up and Disaster Recovery
Licensee may use
and copy the Product and related Documentation in connection with:
(i) reproducing a reasonable number of copies of the Product for
archival backup and disaster recovery procedures; (ii) reproducing a
reasonable number of copies of the Product and related Documentation
for cold site storage; (iii) reproducing a back-up copy of the Product to
run for a reasonable period of time in conjunction with a documented
consolidation or transfer otherwise allowed herein. The phrase “cold
site storage” means a restorable back-up copy of the Product not to be
installed until the need for disaster recovery arises. The phrase
“disaster recovery” means the installation and storage of Product in
ready-to-execute, back-up computer systems prior to disaster or
breakdown which is not used for active production or development.
Contractor shall fully disclose all archival back-up and disaster
recovery options available to Licensee (e.g., cold, warm, and hot back-
up), including all terms and conditions, additional charges, or use
authorizations associated with such options.
h.
Confidentiality Restrictions
If any portion of the Product or
Product Documentation contains confidential, proprietary, or trade
secret information, the Contractor shall identify such information in
writing to the Licensee. The terms of Licensee’s use and disclosure of
such information shall be governed by a written agreement between
the Contractor and the Licensee, which, in the case of Licensees that
are State or local governmental entities, recognizes that they are
subject to the New York Freedom of Information Law.
i.
Restricted Use by Licensee
Except as expressly authorized by
the Terms of License, Licensee shall not: (i) copy the Product; (ii)
cause or permit reverse compilation or reverse assembly of all or any
portion of the Product; or (iii) export the Licensed Software in
violation of the Export Administration Regulations (EAR) or the
International Traffic in Arms Regulations (ITAR).
61.
PRODUCT ACCEPTANCE
Unless otherwise provided by
mutual agreement of the Authorized User and the Contractor, an
Authorized User shall have 30 days from the date of delivery to accept
hardware Products and 60 days from the date of delivery to accept all
other Product. Where the Contractor is responsible for installation,
acceptance shall be from completion of installation. Title or other
property interest and risk of loss shall not pass from Contractor to the
Authorized User until the Products have been accepted.
Failure to
provide notice of acceptance or rejection or a deficiency statement to
the Contractor by the end of the period provided for under this clause
constitutes acceptance by the Authorized User as of the expiration of
that period. The license term shall be extended by the time periods
allowed for trial use, testing and acceptance.
Unless otherwise provided by mutual agreement of the Authorized User
and the Contractor, Authorized User shall have the option to run testing
on the Product prior to acceptance, such tests and data to be specified
by Authorized User. Where using its own data or tests, Authorized
User must have the tests or data available upon delivery. This
demonstration will take the form of a documented installation test,
capable of observation by the Authorized User, which shall be made
part of the Contractor’s standard documentation and shall be covered
by the Product warranty. The test data shall remain accessible to the
Authorized User after completion of the test.
In the event that the documented installation test cannot be completed
successfully within the specified acceptance period, and the Contractor
or Product is responsible for the delay, Authorized User shall have the
option to cancel the order in whole or in part, or to extend the testing
period for an additional 30 day increment. Authorized User shall
notify Contractor of acceptance upon successful completion of the
documented installation test. Such cancellation shall not give rise to
any cause of action against the Authorized User for damages, loss of
profits, expenses, or other remuneration of any kind.
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
16
Unless otherwise provided by mutual agreement of the Authorized
User and the Contractor, if the Authorized User elects to provide a
deficiency statement specifying how the Product fails to meet the
specifications within the testing period, Contractor shall have 30 days
to correct the deficiency, and the Authorized User shall have an
additional 60 days to evaluate the Product as provided herein.
If the Product does not meet the specifications at the end of the
extended testing period, Authorized User, upon prior written notice to
Contractor, may then reject the Product and return all defective
Product to Contractor, and Contractor shall refund any monies paid by
the Authorized User to Contractor therefor. Costs and liabilities
associated with a failure of the Product to perform in accordance with
the functionality tests or product specifications during the acceptance
period shall be borne fully by Contractor to the extent that said costs or
liabilities shall not have been caused by negligent or willful acts or
omissions of the Authorized User’s agents or employees. Said costs
shall be limited to the amounts set forth in the Limitation of Liability
clause for any liability for costs incurred at the direction or
recommendation of Contractor. When Product is not accepted, it must
be removed by the Contractor from the premises of the Authorized
User within ten calendar days of notification of non-acceptance by the
Authorized User. Rejected items not removed by the Contractor
within the ten calendar day period shall be regarded as abandoned by
the Contractor and the Authorized User shall have the right to dispose
of Product as its own property. The Contractor shall promptly
reimburse the Authorized User for any costs incurred in storage or
effecting removal or disposition after the ten calendar day period.
62.
AUDIT OF LICENSED PRODUCT USAGE
Contractor
shall have the right to periodically audit, no more than annually, at
Contractor’s expense, use of licensed Product at any Site where a copy
of the Product resides. Contractor may conduct such audits remotely
or on Site. If conducted remotely and if Contractor makes a license
management program available, the Licensee agrees to install such
program and use it within a reasonable period of time, provided such
program meets Licensee’s security or other requirements. If
conducted on Site: (i) Contractor shall give Licensee at least 30 days
advance written notice, (ii) such audit shall be conducted during
Licensee’s normal business hours, (iii) the audit shall be conducted by
an independent auditor chosen on mutual agreement of the parties.
Contractor shall recommend a minimum of three auditing/accounting
firms from which the Licensee will select one; and (iv) Contractor and
Licensee are each entitled to designate a representative who shall be
entitled to participate, and who shall mutually agree on audit format,
and simultaneously review all information obtained by the audit. Such
representatives also shall be entitled to copies of all reports, data or
information obtained from the audit. If the audit shows that such party
is not in compliance, Licensee shall be required to purchase additional
licenses or capacities necessary to bring it into compliance and shall
pay for the unlicensed capacity at the net pricing in effect under the
Contract at time of audit, or if none, then at the Contractor’s U.S.
commercial list price. Once such additional licenses or 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 software.
In the event of an on-Site audit, the Software Alliance, Software
Publishers Association (SPA), Software and Industry Information
Association (SIIA) or Federation Against Software Theft (FAST) may
not be used directly or indirectly to conduct such audit, nor may such
entities be recommended by Contractor.
63.
NO HARDSTOP OR PASSIVE LICENSE MONITORING
Unless otherwise expressly agreed to by the Licensee, the Product and
all upgrades shall not contain any computer code that would disable
the Product or upgrades or impair in any way its operation based on
the elapsing of a period of time, exceeding an authorized number of
copies, advancement to a particular date or other numeral, or other
similar self-destruct mechanisms (sometimes referred to as “time
bombs,” “time locks,” or “drop dead” devices) or that would permit
Contractor to access the Product to cause such disablement or
impairment (sometimes referred to as a “trap door” device). Any
Contractor access to the Product agreed to by Licensee as provided
above shall be in accordance with Licensee’s security or other
requirements. Contractor agrees that in the event of a breach of this
provision that Licensee shall not have an adequate remedy at law,
including monetary damages, and that Licensee shall consequently be
entitled to seek a temporary restraining order, injunction, or other form
of equitable relief against the continuance of such breach, in addition
to any and all remedies to which Licensee shall be entitled.
64.
OWNERSHIP/TITLE TO PROJECT DELIVERABLES
This clause shall apply where Contractor is commissioned by the
Authorized User to furnish project deliverables as detailed in the
Purchase Order.
a.
Definitions
(i)
For purposes of this clause, “Products” means deliverables
furnished under this Contract by or through Contractor, including
existing and custom Products, including, but not limited to: a)
components of the hardware environment, b) printed materials
(including but not limited to training manuals, system and user
documentation, reports, drawings), whether printed in hard copy or
maintained on electronic media c) Third-Party Software, d)
modifications, customizations, custom programs, program listings,
programming tools, data, modules, components, and e) any properties
embodied therein, whether in tangible or intangible form (including
but not limited to utilities, interfaces, templates, subroutines,
algorithms, formulas, Source Code, object code).
(ii)
For purposes of this clause, “Existing Products” means
tangible Products and intangible licensed Products that exist prior to
the commencement of work under the Contract. Contractor bears the
burden of proving that a particular product was in existence prior to
the commencement of the project.
(iii)
For purposes of this clause, “Custom Products” means
Products, preliminary, final, or otherwise, that are created or
developed by Contractor, its Subcontractors, partners, employees, or
agents for Authorized User under the Contract.
b.
Title to Project Deliverables
Unless otherwise specified in
writing in the Purchase Order, the Authorized User shall have
ownership and license rights as follows:
(i) Existing Products
:
1.
Hardware
- Title and ownership of Existing hardware
Products shall pass to Authorized User upon acceptance.
2.
Software
- Title and ownership to Existing software
Products delivered by Contractor under the Contract that is normally
commercially distributed on a license basis by the Contractor or other
Third-Party Software vendor (“Existing Licensed Product”), whether
or not embedded in, delivered or operating in conjunction with
hardware or Custom Products, shall remain with Contractor or the
Third-Party Software vendor. Effective upon acceptance, such
Product shall be licensed to Authorized User in accordance with the
Contractor or Third-Party Software vendor’s standard license
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
17
agreement; provided, however, that such standard license, must, at a
minimum: (a) grant Authorized User a non-exclusive, perpetual
license to use, execute, reproduce, display, perform, adapt (unless
Contractor advises Authorized User as part of Contractor’s proposal
that adaptation will violate existing agreements or statutes and
Contractor demonstrates such to the Authorized User’s satisfaction)
and distribute Existing Licensed Product to the Authorized User up to
the license capacity stated in the Purchase Order or work order with all
license rights necessary to fully effect the general business purposes
stated in the Solicitation or Authorized User’s Purchase Order or work
order, including the financing assignment rights set forth in paragraph
(c) below; and (b) recognize the State of New York as the Licensee
where the Authorized User is a State Agency, department, board,
commission, office or institution. Where these rights are not otherwise
covered by the Third-Party Software vendor’s standard license
agreement, the Contractor shall be responsible for obtaining these
rights at its sole cost and expense. The Authorized User shall
reproduce all copyright notices and any other legend of ownership on
any copies authorized under this clause.
(
ii) Custom Products
: Effective upon creation of Custom
Products, Contractor hereby conveys, assigns and transfers to
Authorized User the sole and exclusive rights, title and interest in
Custom Products, whether preliminary, final or otherwise, including
all trademark and copyrights. Contractor hereby agrees to take all
necessary and appropriate steps to ensure that the Custom Products are
protected against unauthorized copying, reproduction and marketing
by or through Contractor, its agents, employees, or Subcontractors.
Nothing herein shall preclude the Contractor from otherwise using the
related or underlying general knowledge, skills, ideas, concepts,
techniques and experience developed under a Purchase Order, project
definition or work order in the course of Contractor’s business.
Authorized User may, by providing written notice thereof to the
Contractor, elect in the alternative to take a non-exclusive perpetual
license to Custom Products in lieu of Authorized User taking exclusive
ownership and title to such Products. In such case, Licensee on behalf
of all Authorized Users shall be granted a non-exclusive perpetual
license to use, execute, reproduce, display, perform, adapt and
distribute Custom Product as necessary to fully effect the general
business purposes as stated in paragraph (b)(i)(2), above.
c.
Transfers or Assignments to a Third-Party Financing Agent
It
is understood and agreed by the parties that a condition precedent to
the consummation of the purchases under the Contract may be the
obtaining of acceptable third-party financing by the Authorized User.
The Authorized User shall make the sole determination of the
acceptability of any financing proposal. The Authorized User will
make all reasonable efforts to obtain such financing, but makes no
representation that such financing has been obtained as of the date of
Bid receipt. Where financing is used, Authorized User may assign or
transfer its rights in Licensed Products (existing or custom) to a third-
party financing entity or trustee (“Trustee”) as collateral where required
by the terms of the financing agreement. Trustee’s sole rights with
respect to transferability or use of Licensed Products shall be to
exclusively sublicense to Authorized User all of its Licensee’s rights
under the terms and conditions of the License Agreement; provided,
further, however, in the event of any termination or expiration of such
sublicense by reason of payment in full, all of Trustee’s rights in such
Licensed Product shall terminate immediately and Authorized User’s
prior rights to such Existing Licensed Product shall be revived.
d.
Sale or License of Custom Products Involving Tax-Exempt
Financing (i.e., Certificates of Participation - COPS)
The Authorized
User’s sale or other transfer of Custom Products which were acquired by
the Authorized User using third-party, tax-exempt financing may not
occur until such Custom Products are, or become, useable. In the event
that the Contractor wishes to obtain ownership rights to Custom Products,
the sale or other transfer shall be at fair market value determined at the
time of such sale or other transfer, and must be pursuant to a separate
written agreement in a form acceptable to the Authorized User which
complies with the terms of this clause.
e.
Contractor’s Obligation with Regard to Third–Party Software
Where Contractor furnishes Existing Licensed Products as a project
deliverable, and sufficient rights necessary to effect the purposes of this
section are not otherwise provided in the Contractor or the Third-Party
Software vendor’s standard license agreement, Contractor shall be
responsible for obtaining from the Third-Party Software proprietary
owner/developer the rights set forth herein to the benefit of the
Authorized User at Contractor’s sole cost and expense.
65.
PROOF OF LICENSE
The Contractor must provide to each
Licensee who places a Purchase Order either: (i) the Product
developer’s certified license confirmation certificates in the name of
such Licensee; (ii) a written confirmation from the proprietary owner
accepting Product invoice as proof of license; or (iii) other similar
proof of license. All proofs of license must be in a form acceptable to
the Licensee.
66.
CHANGES TO PRODUCT OR SERVICE OFFERINGS
a.
Product or Service Discontinuance
Where Contractor is the
Product manufacturer/developer, and Contractor publicly announces to
all U.S. customers (“date of notice”) that a Product is being withdrawn
from the U.S. market or that maintenance service or technical support
provided by Contractor (“withdrawn support”) is no longer going to be
offered, Contractor shall be required to: (i) notify the Commissioner
and each Licensee then under contract for maintenance or technical
support in writing of the intended discontinuance; and (ii) continue to
offer Product or withdrawn support upon the Contract terms
previously offered for the greater of: (a) the best terms offered by
Contractor to any other similarly situated, supported customer, or (b)
not less than 12 months from the date of notice; and (iii) at Licensee’s
option, and in order to enable Licensee to continue the use and
maintenance of the Product, provide Licensee with a Product
replacement or migration path with at least equivalent functionality at
no additional charge, provided that Licensee is under contract for
maintenance on the date of notice and Contractor is offering such
replacement or migration path to all of its similarly situated, supported
customers without additional charge.
In the event that the Contractor is not the Product manufacturer,
Contractor shall be required to: (i) provide the notice required under
the paragraph above, to the entities described within five business days
of Contractor receiving notice from the Product manufacturer, and (ii)
include in such notice the period of time from the date of notice that
the Product manufacturer will continue to provide Product or withdraw
support.
The provisions of this subdivision (a) shall not apply or eliminate
Contractor’s obligations where withdrawn support is being provided
by an independent Subcontractor. In the event that such Subcontractor
ceases to provide service, Contractor shall be responsible for
subcontracting such service, subject to State approval, to an alternate
Subcontractor.
b
.
Product or Service Re-Bundling
In the event that Contractor is
the Product manufacturer and publicly announces to all U.S. customers
(“date of notice”) that a Product or maintenance or technical support
offering is being re-bundled in a different manner from the structure or
licensing model of the prior U.S. commercial offering, Contractor shall
GENERAL SPECIFICATIONS
APPENDIX B
APRIL 2016
18
be required to: (i) notify the Commissioner and each Licensee in
writing of the intended change; (ii) continue to provide Product or
withdrawn support upon the same terms and conditions as previously
offered on the then-current NYS Contract for the greater of: (a) the
best terms offered by Contractor to any other similarly situated,
supported customer, or (b) not less than 12 months from the date of
notice; and (iii) shall submit the proposed rebundling change to the
Commissioner for approval prior to its becoming effective for the
remainder of the Contract term. The provisions of this section do not
apply if the Contractor is not the Product manufacturer.
APRIL 2016
I N D E X
Clause
Clause
A
No.
Assignment
40
Assignment of Claim
49
Audit of Licensed Product Usage
62
B
Bid Evaluation
16
Bid Opening
4
C
Changes to Product or Service Offerings
66
Confidential/Trade Secret Materials
6
Contract Invoicing
45
Contract Creation/Execution
22
Contract Publicity
21
Contract Term - Extension
23
Cooperation with Third Parties
53
D
Debriefings
20
Default - Authorized User
46
Definitions
2
Dispute Resolution Procedures
59
E
Emergency Contracts
29
Employees, Subcontractors and Agents
39
Estimated/Specific Quantity Contracts
28
Ethics Compliance
1
Expenses Prior to Contract Execution
9
I
Indemnification
56
Indemnification Relating to Infringement
57
Independent Contractor
51
Installation
37
International Bidding
3
L
Late Bids
5
Legal Compliance
55
Limitation of Liability
58
M
Modification of Contract Terms
26
N
No Hardstop or Passive License Monitoring
63
O
Official Use Only/No Personal Use
24
Ownership/Title to Project Deliverables
64
P No.
Participation in Centralized Contracts
25
Prevailing Wage Rates - Public Works
and Building Services Contracts
7
Pricing
13
Product Acceptance
61
Product Delivery
31
Product References
10
Product Substitution
35
Products Manufactured in Public Institutions
12
Prompt Payments
47
Proof of License
65
Purchase Orders
30
Purchasing Card
15
Q
Quantity Changes Prior to Award
18
R
Rejected Product
36
Remanufactured, Recycled, Recyclable, or
Recovered Materials
11
Remedies for Breach
48
Repaired or Replaced Products, Parts, or Components
38
S
Savings/Force Majeure
44
Scope Changes
27
Security
52
Site Inspection
14
Shipping/Receipt of Product
33
Software License Grant
60
Subcontractors and Suppliers
41
Suspension of Work
42
T
Taxes
8
Termination
43
Tie Bids
17
Timeframe for Offers
19
Title and Risk of Loss for Products Other than
Technology Products
34
Toxic Substances
50
W
Warranties
54
Weekend and Holiday Deliveries
32
PAGE 1
23355 Appendix C - Federal Funding Agency Mandatory Terms and Conditions
October 2023
APPENDIX C
Authorized users that may want to seek federal funds from the federal funding agencies for the purchase of goods or
services during a declared disaster are advised that federal funding agencies require particular terms and conditions
be included in the contract for those goods and services. For the convenience of authorized users, those terms and
conditions are set out below and can also be found at the FEMA website.
Authorized users of statewide contracts should consider adding this language to future purchase orders and
secondary level competitions (often referred to as RFQs or mini- bids), unless the language is already attached to
the statewide contract. State agencies making purchases to respond to disasters through a vehicle other than a
centralized contract are required by Section H.6. of
Budget Bulletin H-501R
to include these and other terms into
their contracts using the Appendix set forth in the Budget Bulletin.
Federal Funding Agency Mandatory Terms and Conditions
The following provisions are required by federal funding agencies in order for expenditures by Authorized Users to
be eligible for federal reimbursement in the event of a State declaration of disaster emergency pursuant to Section
28 of the Executive Law.
1.
REMEDIES
Remedies for Contractor failure to observe or perform any term or condition shall be as provided in the OGS
centralized contract (if applicable), including all appendices.
2.
TERMINATION FOR CAUSE AND CONVENIENCE
Termination for cause and convenience will be in accordance with Termination, Appendix B, General
Specifications, if a statewide centralized contract, and Section 5, Copeland Anti-Kickback Act, of this document
and/or the rules and regulations of your governing authority.
3.
EQUAL EMPLOYMENT OPPORTUNITY
During the performance of the contract, OGS centralized contract (if applicable) or any purchase by an Authorized
User, the Contractor agrees as follows:
A.
The Contractor will not discriminate against any employee or applicant for employment because of race,
color, religion, sex, sexual orientation, gender identity, or national origin. The Contractor will take
affirmative action to ensure that applicants are employed, and that employees are treated during
employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national
origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants
for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
B.
The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the
Contractor, state that all qualified applicants will receive consideration for employment without regard to
race, color, religion, sex, sexual orientation, gender identity, or national origin.
C.
The Contractor will not discharge or in any other manner discriminate against any employee or applicant
for employment because such employee or applicant has inquired about, discussed, or disclosed the
PAGE 2
23355 Appendix C - Federal Funding Agency Mandatory Terms and Conditions
October 2023
compensation of the employee or applicant or another employee or applicant. This provision shall not apply
to instances in which an employee who has access to the compensation information of other employees or
applicants as a part of such employee’s essential job functions discloses the compensation of such other
employees or applicants to individuals who do not otherwise have access to such information, unless such
disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding,
hearing, or action, including an investigation conducted by the employer, or is consistent with the
Contractor’s legal duty to furnish information.
D.
The Contractor will send to each labor union or representative of workers with which he has a collective
bargaining agreement or other contract or understanding, a notice to be provided advising the said labor
union or workers’ representatives of the Contractor’s commitments under this section, and shall post copies
of the notice in conspicuous places available to employees and applicants for employment.
E.
The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the
rules, regulations, and relevant orders of the Secretary of Labor.
F.
The Contractor will furnish all information and reports required by Executive Order 11246 of September
24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will
permit access to his books, records, and accounts by the administering agency and the Secretary of Labor
for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
G.
In the event of the Contractor’s noncompliance with the nondiscrimination clauses of the OGS centralized
contract or with any of the said rules, regulations, or orders, the OGS centralized contract may be canceled,
terminated, or suspended in whole or in part, and the Contractor may be declared ineligible for further
Government contracts or federally assisted construction contracts in accordance with procedures authorized
in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies
invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the
Secretary of Labor, or as otherwise provided by law.
H.
The Contractor will include the portion of the sentence immediately preceding paragraph (1) and the
provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules,
regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of
September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The
Contractor will take such action with respect to any subcontract or purchase order as the administering
agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a Contractor becomes involved in, or is threatened with, litigation with
a subcontractor or vendor as a result of such direction by the administering agency, the Contractor may
request the United States to enter into such litigation to protect the interests of the United States.
The Authorized User further agrees that it will be bound by the above equal opportunity clause with respect
to its own employment practices when it participates in federally assisted construction work: Provided, that
if the Authorized User so participating is a State or local government, the above equal opportunity clause is
not applicable to any agency, instrumentality or subdivision of such government which does not participate
in work on or under the contract.
The Authorized User agrees that it will assist and cooperate actively with the administering agency and the
Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity
clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the
administering agency and the Secretary of Labor such information as they may require for the supervision
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23355 Appendix C - Federal Funding Agency Mandatory Terms and Conditions
October 2023
of such compliance, and that it will otherwise assist the administering agency in the discharge of the
agency’s primary responsibility for securing compliance.
The Authorized User further agrees that it will refrain from entering into any contract or contract
modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or
who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts
pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal
opportunity clause as may be imposed upon Contractors and subcontractors by the administering agency or
the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the Authorized
User agrees that if it fails or refuses to comply with these undertakings, the administering agency may take
any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract,
loan, insurance, guarantee); refrain from extending any further assistance to the Authorized User under the
program with respect to which the failure or refund occurred until satisfactory assurance of future
compliance has been received from such Authorized User; and refer the case to the Department of Justice
for appropriate legal proceedings.
4.
DAVIS-BACON ACT. (Applicable to all construction contracts in excess of ($2000)
A.
If applicable, all transactions regarding the OGS centralized contract or any purchase by an Authorized
User shall be done in compliance with the Davis-Bacon Act (40 U.S.C. 3141- 3144, and 3146-3148) and the
requirements of 29 C.F.R. pt. 5 as may be applicable. The Contractor shall comply with 40 U.S.C. 3141-
3144, and3146-3148 and the requirements of 29 C.F.R. pt. 5 as applicable.
B.
Contractors are required to pay wages to laborers and mechanics at a rate not less than the prevailing wages
specified in a wage determination made by the Secretary of Labor.
C.
Additionally, Contractors are required to pay wages not less than once a week.
5.
COPELAND ANTI-KICKBACK ACT. (Applicable to all construction contracts in excess of
($2000)
A.
Contractor. The Contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of
29 C.F.R. pt. 3 as may be applicable, which are incorporated by reference into the OGS centralized contract.
B.
Subcontracts. The Contractor or subcontractor shall insert in any subcontracts the clause above and such
other clauses as Federal funding agency may by appropriate instructions require, and also a clause requiring
the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be
responsible for the compliance by any subcontractor or lower tier subcontractor with all of these contract
clauses.
C.
Breach. A breach of the clauses above may be grounds for termination of the OGS centralized contract, and
for debarment as a Contractor and subcontractor as provided in 29 C.F.R. § 5.12.
6.
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT. (Applicable to all contracts in
excess of $100,000 that involve employment of mechanics and laborers)
A.
Overtime requirements. No Contractor or subcontractor for any part of the contract work which may require
or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in
any workweek in which he or she is employed on such work to work in excess of forty hours in such
workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half
times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
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23355 Appendix C - Federal Funding Agency Mandatory Terms and Conditions
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B.
Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set
forth in paragraph (b)(1) of this section, the Contractor and any subcontractor responsible therefor shall be
liable for the unpaid wages. In addition, such Contractor and subcontractor shall be liable to the United
States (in the case of work done under contract for the District of Columbia or a territory, to such District or
to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each
individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set
forth in paragraph (b)(1) of this section, in the sum of $26 for each calendar day on which such individual
was required or permitted to work in excess of the standard workweek of forty hours without payment of
the overtime wages required by the clause set forth in paragraph (b)(1) of this section.
C.
Withholding for unpaid wages and liquidated damages. The Authorized User shall upon its own action or
upon written request of an authorized representative of the Department of Labor withhold or cause to be
withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under
any such contract or any other Federal Agreement with the same prime contractor, or any other federally
assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same
prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such
contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in
paragraph (b)(2) of this section.
D.
Subcontracts. The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in
paragraph (b)(1) through (4) of this section and also a clause requiring the subcontractors to include these
clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(1) through (4) of this
section.
7.
RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT
All such rights shall be addressed in accordance with Ownership/Title to Project Deliverables, Appendix B, General
Specifications.
8.
CLEAN AIR ACT AND THE FEDERAL WATER POLLUTION CONTROL ACT. (Applicable to all
contracts in excess of $150,000)
Clean Air Act
A.
The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the
Clean Air Act, as amended, 42 U.S.C. § 7401 et, seq.
B.
The Contractor agrees to report each violation to the contract manager or the Office of General Services and
the Authorized User if a statewide centralized contract and understands and agrees that the Office of
General Services or the Authorized User will, in turn, report each violation as required to assure notification
to the Federal funding agency, and the appropriate Environmental Protection Agency Regional Office.
C.
The Contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in
whole or in part with Federal assistance provided by the Federal funding agency.
Federal Water Pollution Control Act
A.
The Contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the
Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq.
B.
The Contractor agrees to report each violation to the Office of General Services and Authorized User and
understands and agrees that the Office of General Services or the Authorized User will, in turn, report each
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23355 Appendix C - Federal Funding Agency Mandatory Terms and Conditions
October 2023
violation as required to assure notification to the Federal funding agency, and the appropriate
Environmental Protection Agency Regional Office.
C.
The Contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in
whole or in part with Federal assistance provided by the Federal funding agency.
9.
DEBARMENT AND SUSPENSION
A.
This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such, the
Contractor is required to verify that none of the Contractor’s principals (defined at 2 C.F.R. § 180.995) or
its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified
(defined at 2 C.F.R. § 180.935).
B.
The Contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, and must
include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
C.
This certification is a material representation of fact relied upon by the State or Authorized User. If it is
later determined that the Contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000,
subpart C, in addition to remedies available to the State or an Authorized User, the Federal Government
may pursue available remedies, including but not limited to suspension and/or debarment.
D.
The Contractor agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000,
subpart C while this offer is valid and throughout the period of any contract that may arise from this offer.
The Contractor further agrees to include a provision requiring such compliance in its lower tier covered
transactions.
10.
BYRD ANTI-LOBBYING AMENDMENT, 31 U.S.C. § 1352 (as amended)
If the OGS centralized contract or any purchase by an Authorized User has a value of $100,000 or more, Contractor
shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal
appropriated funds to pay any person or organization for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, officer or employee of Congress, or an employee of a Member of
Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352.
Each tier shall also disclose any lobbying with non- Federal funds that takes place in connection with obtaining any
Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the
certification(s) to the awarding agency.
A.
Required Certification. If applicable, Contractors must sign and submit to the State the following
certification.
APPENDIX A, 44 C.F.R. PART 18 – CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements. The undersigned certifies, to the
best of his or her knowledge and belief, that:
1)
No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to
any person for influencing or attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection
with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal
loan, the entering into of any cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
PAGE6
2.)
If any fimds other than Federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence
an
officer or employee
of
any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress in connection with this
Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit
Standard Fonn-LLL, "Disclosure Fonn to Report Lobbying," in accordance with its in
s
tru
ct
ion
s
,
3)
TI1e undersigned shall require that the language of this certification be included in the award documents
for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and
cooperative agreements) and that all subrecipients shall certify and disclose accordingl
y
.
TI1is certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 3 I, U.S. Code. Any person who fails to file
the required certification shall be subject to a civil penalty of not less than
$10,000
and not more than
$100,000
for each such failure
.
111e Contractor, Deloitte Consulting
LLP,
certifies or affinns the truthfulness and accuracy of each
statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that
the provisions of 31 U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to
this certification and disclosure, if any.
/
Signature of Contractor's Authorized Official 7
œ
Name of Contractor's Authorized Official Aurelio "PJ" Rivera
Title of Official Principal
Date:
7-f
o-21/
11.
PROCUREMENT OF RECOVERED MATERIALS
A.
In the performance ofthis contract, the Contractor shall make maximum use of products containing
recovered materials that are EPA-designated items unless the product cannot be acquired -
•
Competitively within a timeframe providing for compliance with the contract performance schedule;
•
Meeting contract performance requirements; or
•
At a reasonable price.
B.
Information about this requirement, along with the list of EPA-designated items, is available at EPA's
Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprchcnsivc-procuremcnt
gu i del ine-cpg-program
C.
The Contractor also agrees to comply with all other applicable requirements of Section
6002
of the Solid
Waste Disposal Act.
12.
ACCESS TO RECORDS
A The Contractor agrees to provide the Office of General Services or the Authorized User, the Federal
funding agency, the Comptroller General of the United States, or any of their authorized representatives
access to any books, documents, papers, and records of the Contractor that are directly pertinent to this
contract for the purposes of making audits, examinations, excerpts, and transcriptions.
B,
ll1e Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to
copy excerpts and transcriptions as reasonably needed.
23355 Appendix C - Federal Funding Agency Mandatoiy Tenns and Conditions
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23355 Appendix C - Federal Funding Agency Mandatory Terms and Conditions
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C.
The Contractor agrees to provide the Federal funding agency or its authorized representatives access to
construction or other work sites pertaining to the work being completed under the contract.
D.
The State and the Contractor acknowledge and agree that no language in this contract is intended to prohibit
audits or internal reviews by the Federal funding agency or the Comptroller General of the United States.
13.
CHANGES
Amendments to this contract shall be in accordance with the terms of the OGS centralized contract.
14.
FEDERAL SEAL(S), LOGOS, AND FLAGS
The Contractor shall not use the seal(s), logos, crests, or reproductions of flags or likenesses of Federal agency
officials without specific pre-approval.
15.
COMPLIANCE WITH FEDERAL LAW, REGULATIONS, AND EXECUTIVE ORDERS
This is an acknowledgement that Federal funding agency financial assistance may be used to fund all or a portion of
the contract. The Contractor will comply with all applicable Federal law, regulations, executive orders, FEMA or
other federal agency policies, procedures, and directives.
16.
NO OBLIGATION BY FEDERAL GOVERNMENT
The Federal Government is not a party to this Contract or any purchase by an Authorized User and is not subject to
any obligations or liabilities to the State, Contractor, or any other party pertaining to any matter resulting from the
Contract or any purchase by an Authorized User.
17.
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS
The Contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements)
applies to the Contractor’s actions pertaining to this Contract or any purchase by an Authorized User.
18.
FEDERAL DEBT
The Contractor certifies that it is non-delinquent in its repayment of any federal debt. Examples of relevant debt
include delinquent payroll and other taxes, audit disallowance, and benefit overpayments.
19.
CONFLICTS OF INTEREST
The Contractor shall notify the Office of General Services and Authorized User as soon as possible if this
Agreement or any aspect related to the anticipated work under this Agreement raises an actual or potential conflict
of interest (as described in 2 C.F.R. Part 200). The Contractor shall explain the actual or potential conflict in
writing in sufficient detail so that the Office of General Services and Authorized User is able to assess the actual or
potential conflict. The Contractor shall provide any additional information necessary for the Office of General
Services and Authorized User to fully assess and address the actual or potential conflict of interest.
20.
U.S. EXECUTIVE ORDER 13224
Contractor, and its subcontractors, must comply with U.S. Executive Order 13224 and U.S. Laws that prohibit
transactions with and provision of resources and support to individuals and organizations associated with terrorism.
M
ASTER
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ONTRACT
N
O
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01620
B
USINESS
C
ONSULTING
S
ERVICES
FOR
O
RGANIZATION
D
EVELOPMENT
,
C
HANGE
M
ANAGEMENT AND
M
ANAGEMENT
&
B
USINESS
A
NALYSIS
For Use by Eligible Purchasers
By and Between
S
TATE OF
W
ASHINGTON
D
EPARTMENT OF
E
NTERPRISE
S
ERVICES
and
D
ELOITTE
C
ONSULTING
LLP
Dated March 1, 2022
M
ASTER
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ONTRACT
N
O
. 01620 – B
USINESS
C
ONSULTING
S
ERVICES
(Rev. 2020-03-11)
P
AGE
1
M
ASTER
C
ONTRACT
N
O
.
01620
B
USINESS
C
ONSULTING
S
ERVICES
FOR
O
RGANIZATION
D
EVELOPMENT
,
C
HANGE
M
ANAGEMENT AND
M
ANAGEMENT
&
B
USINESS
A
NALYSIS
This Master Contract (“Master Contract”) is made and entered into by and between the State of
Washington acting by and through the Department of Enterprise Services, a Washington State
governmental agency (“Enterprise Services”) and Deloitte Consulting LLP, a Washington Limited Liability
Partnership (“Contractor”) and is dated and effective as of March 1, 2022.
R E C I T A L S
A.
Pursuant to Legislative direction codified in RCW chapter 39.26, Enterprise Services, on
behalf of the State of Washington, is authorized to develop, solicit, and establish master
contracts for services for general use by Washington state agencies and certain other
entities (eligible purchasers).
B.
Washington state agencies and other eligible purchasers have the need for certain
Business Consulting Services which are provided by contractors. The Business Consulting
Services at issue include three different categories of services: (i) Organizational
Development; (ii) Change Management; and (iii) Management & Business Analysis.
C.
On behalf of the State of Washington, Enterprise Services, as part of a competitive
governmental procurement, issued Competitive Solicitation No.01620 dated December
10, 2020. Pursuant to this Competitive Solicitation, bidders could compete for a Master
Contract in any or all of the three categories of Business Consulting Services.
D.
Enterprise Services evaluated all responses to the Competitive Solicitation and identified
Contractor as an apparent successful bidder for the specified category(ies) of Business
Consulting Services listed above.
E.
Enterprise Services has determined that entering into this Master Contract will meet the
identified needs and be in the best interest of the State of Washington.
F.
The purpose of this Master Contract is to enable eligible purchasers to purchase the
category(ies) of Business Consulting Services listed above and described as set forth
herein.
A G R E E M E N T
N
OW
T
HEREFORE
, in consideration of the mutual promises, covenants, and conditions set forth herein, the
parties hereto hereby agree as follows:
1.
T
ERM
. The term of this Master Contract is seventy-two (72) months, commencing March 1, 2022 and
ending February 29, 2028.
2.
E
LIGIBLE
P
URCHASERS
. This Master Contract may be utilized by any of the following types of entities
(“Purchaser”):
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2.1.
W
ASHINGTON
S
TATE
A
GENCIES
. All Washington state agencies, departments, offices, divisions,
boards, and commissions.
2.2.
W
ASHINGTON
S
TATE
I
NSTITUTIONS OF
H
IGHER
E
DUCATION
(
COLLEGES
). Any the following institutions
of higher education in Washington:
State universities – i.e., University of Washington & Washington State University;
Regional universities – i.e., Central Washington University, Eastern Washington
University, & Western Washington University
Evergreen State College;
Community colleges; and
Technical colleges.
2.3.
MCUA P
ARTIES
. Any of the following types of entities that have executed a Master Contract
Usage Agreement with Enterprise Services:
Political subdivisions (e.g., counties, cities, school districts, public utility districts)
in the State of Washington;
Federal governmental agencies or entities;
Public-benefit nonprofit corporations (i.e., § 501(c)(3) nonprofit corporations
that receive federal, state, or local funding); and
Federally-recognized Indian Tribes located in the State of Washington.
3.
S
COPE
–
I
NCLUDED
S
ERVICES AND
P
RICE
.
3.1.
C
ONTRACT
S
COPE
. Pursuant to this Master Contract, Contractor is authorized to sell only those
goods and/or services set forth in
Exhibit A – Included Business Consulting Services
for the
prices set forth in
Exhibit B – Prices for Services
. Contractor shall not represent to any
Purchaser under this Master Contract that Contractor has contractual authority to sell any
goods and/or services beyond those set forth in
Exhibit A – Included Business Consulting
Services
.
3.2.
S
TATE
’
S
A
BILITY TO
M
ODIFY
S
COPE OF
M
ASTER
C
ONTRACT
. Subject to mutual agreement between
the parties, Enterprise Services reserves the right to modify the goods and/or services
included in this Master Contract;
Provided
, however, that any such modification shall be
effective only upon thirty (30) days advance written notice; and
Provided further
, that any
such modification must be within the scope of this Master Contract.
3.3.
E
CONOMIC
A
DJUSTMENT
. The Contract Prices set forth herein are firm and fixed for one year
from the effective date of this Master Contract. Beginning twelve (12) months after the
effective date of this Master Contract and for every annual anniversary thereafter, Contractor
may request an annual price adjustment. Requests for price adjustments must be made in
writing and be received at least thirty (30) days prior to the adjustment date (the annual
anniversary of the effective date of the Master Contract). In the event Contractor fails to
timely request a price adjustment, Enterprise Services, at its sole discretion, may allow an
untimely adjustment;
Provided
, however, that such adjustment will not be effective for any
time prior to Enterprise Services’ price adjustment. Price adjustments will be made in
accordance with the percentage change in the United States Department of Labor, Bureau of
Labor and Statistics (BLS) Produce Price Index (PPI), PCU5416--5416-- issued for Management
and Technical Consulting Services of each contract term. The percentage difference between
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ASTER
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the PPI issued for PCU5416--5416--, Management and Technical Consulting Services 2020,
and the PPI issued for each subsequent year will determine the maximum allowable
adjustment of original contract prices. No retroactive contract price adjustments will be
allowed. The economic adjustment shall be calculated as follows:
New Price = Old Price x (Current Period Index/Base Period Index).
Only final PPI date will be used to adjust contract pricing. This Master Contract will use
seasonally unadjusted indexes. If an index becomes unavailable, Enterprise Services shall
substitute a proxy index. If there is not a direct substitute, the next higher aggregate index
available will be used.
3.4.
P
RICE
C
EILING
. Although Contractor may offer lower prices to Purchasers, during the term of
this Master Contract, Contractor guarantees to provide the Goods/Services at no greater than
the prices set forth in
Exhibit B – Prices for Services
(subject to economic adjustment as set
forth herein).
3.5.
M
ASTER
C
ONTRACT
I
NFORMATION
. Enterprise Services shall maintain and provide information
regarding this Master Contract, including scope and pricing, to eligible Purchasers.
4.
C
ONTRACTOR
R
EPRESENTATIONS
AND
W
ARRANTIES
.
Contractor makes each of the following
representations and warranties as of the effective date of this Master Contract and at the time any
order is placed pursuant to this Master Contract. If, at the time of any such order, Contractor cannot
make such representations and warranties, Contractor shall not process any orders and shall, within
three (3) business days notify Enterprise Services, in writing, of such breach.
4.1.
Q
UALIFIED TO DO
B
USINESS
. Contractor represents and warrants that it is in good standing and
qualified to do business in the State of Washington, that it is registered with the Washington
State Department of Revenue and the Washington Secretary of State, that it possesses and
shall keep current all required licenses and/or approvals, and that it is current, in full
compliance, and has paid all applicable taxes owed to the State of Washington.
4.2.
S
USPENSION
& D
EBARMENT
. Contractor represents and warrants that neither it nor its principals
or affiliates presently are debarred, suspended, proposed for debarment, declared ineligible,
or voluntarily excluded from participation in any governmental contract by any governmental
department or agency within the United States.
4.3.
W
AGE
V
IOLATIONS
. Contractor represents and warrants that, during the term of this Master
Contract and the three (3) year period immediately preceding the award of the Master
Contract, it is not determined, by a final and binding citation and notice of assessment issued
by the Washington Department of Labor and Industries or through a civil judgment entered
by a court of limited or general jurisdiction, to be in willful violation of any provision of
Washington state wage laws set forth in RCW chapters 49.46, 49.48, or 49.52.
4.4.
P
AY
E
QUALITY
. Contractor represents and warrants that, among its workers, similarly employed
individuals are compensated as equals. For purposes of this provision, employees are
similarly employed if the individuals work for the same employer, the performance of the job
requires comparable skill, effort, and responsibility, and the jobs are performed under similar
working conditions. Job titles alone are not determinative of whether employees are similarly
employed. Contractor may allow differentials in compensation for its workers based in good
faith on any of the following: a seniority system; a merit system; a system that measures
earnings by quantity or quality of production; a bona fide job-related factor or factors; or a
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bona fide regional difference in compensation levels. A bona fide job-related factor or factors
may include, but not be limited to, education, training, or experience that is: consistent with
business necessity; not based on or derived from a gender-based differential; and accounts
for the entire differential. A bona fide regional difference in compensation level must be
consistent with business necessity; not based on or derived from a gender-based differential;
and account for the entire differential. Notwithstanding any provision to the contrary, upon
breach of warranty and Contractor’s failure to provide satisfactory evidence of compliance
within thirty (30) days, Enterprise Services may suspend or terminate this Master Contract
and any Purchaser hereunder similarly may suspend or terminate its use of the Master
Contract and/or any agreement entered into pursuant to this Master Contract.
4.5.
E
XECUTIVE
O
RDER
18-03 – W
ORKERS
’ R
IGHTS
(I
F
A
PPLICABLE
). Contractor represents and warrants,
as previously certified in Contractor’s Bidder’s Certification, that Contractor does NOT require
its employees, as a condition of employment, to sign or agree to mandatory individual
arbitration clauses or class or collective action waivers. Contractor further represents and
warrants that, during the term of this Contract, Contractor shall not, as a condition of
employment, require its employees to sign or agree to mandatory individual arbitration
clauses or class or collective action waivers.
4.6.
P
ERFORMANCE
& D
ELIVERY OF
S
ERVICES
. Contractor represents and warrants that, in performing
this Contract, Contractor shall:
a)
Perform its obligations in a timely, professional, and workmanlike manner
consistent with standards in the industry;
b)
Meet or exceed the performance and operational standards, requirements, and
specifications set forth in this Contract;
c)
Provide all contractual requirements or deliverables in good quality with no
material defects;
d)
Obtain and maintain in good status all necessary licenses, permits, or other
authorizations necessary for the performance of the Contract;
e)
Cooperate with Purchaser to achieve the objectives of the Contract;
f)
Return to Purchaser any Purchaser-furnished equipment or other resources in
the same condition as when provided when no longer required for the Contract;
g)
Not make any media releases without prior written authorization from
Purchaser;
h)
Not interfere with the State and Purchaser’s operations; and
i)
Comply with all applicable State or Purchaser data and information technology
security policies and standards, which will be made available upon request.
Notwithstanding any provision to the contrary, any breach under this paragraph is considered a
material breach.
4.7.
D
IVERSITY
, E
QUITY
, & I
NCLUSION
. Contractor represents and warrants, as previously certified in
Contractor’s Competitive Solicitation,
Exhibit A-3 – Responsible Bidder (Competencies)
, that
Contractor understands and, in performing this Master Contract, will adhere to the
Washington State Enterprise Leadership Competencies
and the Enterprise DEI Competencies
for all employees posted by the
DEI Committee of the Office of Financial Management
, and
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titled “Enterprise DEI Competencies – All Employees – A pathway for success [PDF]”.
Contractor will notify Enterprise Services within 30 days if the named leader(s) below need to
be changed:
a) N
AMED
L
EADERS
: ((Name and Title from A-3))
Benush Venugopal, Principal
4.8.
P
ROCUREMENT
E
THICS
& P
ROHIBITION ON
G
IFTS
. Contractor represents and warrants that it
complies fully with all applicable procurement ethics restrictions including, but not limited to,
restrictions against Contractor providing gifts or anything of economic value, directly or
indirectly, to Purchasers’ employees.
4.9.
W
ASHINGTON
’
S
E
LECTRONIC
B
USINESS
S
OLUTION
(WEBS). Contractor represents and warrants that
it is registered in Washington’s Electronic Business Solution (WEBS), Washington’s contract
registration system and that, all of its information therein is current and accurate and that
throughout the term of this Master Contract, Contractor shall maintain an accurate profile in
WEBS.
4.10.
S
TATEWIDE
P
AYEE
D
ESK
. Contractor represents and warrants that it is registered with the
Statewide Payee Desk, which registration is a condition to payment.
4.11.
M
ASTER
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ONTRACT
P
ROMOTION
; A
DVERTISING AND
E
NDORSEMENT
.
Contractor represents and
warrants that it shall use commercially reasonable efforts both to promote and market the
use of this Master Contract with eligible Purchasers and to ensure that those entities that
utilize this Master Contract are eligible Purchasers. Contractor understands and
acknowledges that neither Enterprise Services nor Purchasers are endorsing Contractor’s
goods and/or services or suggesting that such goods and/or services are the best or only
solution to their needs. Accordingly, Contractor represents and warrants that it shall make
no reference to Enterprise Services, any Purchaser, or the State of Washington in any
promotional material without the prior written consent of Enterprise Services.
4.12.
M
ASTER
C
ONTRACT
T
RANSITION
. Contractor represents and warrants that, in the event this
Master Contract or a similar contract, is transitioned to another contractor (e.g., Master
Contract expiration or termination), Contractor shall use commercially reasonable efforts to
assist Enterprise Services for a period of sixty (60) days to effectuate a smooth transition to
another contractor to minimize disruption of service and/or costs to the State of Washington.
4.13.
COVID-19 V
ACCINATION
V
ERIFICATION
. Contractor represents and warrants, as previously
certified in Contractor’s Bidder’s Certification, that, Contractor has a current COVID-19
Contractor Vaccination Verification Plan to ensure that Contractor’s personnel (including
subcontractors) who perform this Master Contract on-site at Washington state agency
premises or at the premises of any Purchaser who so requests, unless properly excepted or
exempted by the Proclamation, are fully vaccinated for COVID-19 as of October 18, 2021 as
set forth in the Governor’s Proclamation,
Proclamation 21-14 – COVID-19 Vaccination
Requirement
(dated August 9, 2021) as amended by
Proclamation 21-14.1 – COVID-19
Vaccination Requirement
(dated August 20, 2021). Contractor further represents and
warrants that Contractor:
(a)
Has reviewed and understands Contractor’s obligations as set forth in
Proclamation 21-14 – COVID-19 Vaccination Requirement
(dated August 9,
2021), as amended by
Proclamation 21-14.1 – COVID-19 Vaccination
Requirement
(dated August 20, 2021);
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(b)
Has developed a COVID-19 Vaccination Verification Plan for Contractor’s
personnel (including subcontractors) that complies with the above-
referenced Proclamation;
(c)
Has obtained a copy or visually observed proof of full vaccination against
COVID-19 for Contractor personnel (including subcontractors) who are
subject to the vaccination requirement in the above-referenced
Proclamation;
(d)
Complies with the requirements for granting disability and religious
accommodations for Contractor personnel (including subcontractors) who
are subject to the vaccination requirement in the above-referenced
Proclamation;
(e)
Has operational procedures in place to ensure that any contract activities
that occur on-site at Washington state agency premises or at the premises
of any Purchaser who so requests (other than only for a short period of time
during a given day and where any moments of close proximity to others on-
site will be fleeting – e.g., a few minutes for deliveries) that are performed
by Contractor personnel (including subcontractors) will be performed by
personnel who are fully vaccinated or properly excepted or exempted as
required by the above-referenced Proclamation;
(f)
Has operational procedures in place to enable Contractor personnel
(including subcontractors) who perform contract activities on-site at
Washington state agency premises or at the premises of any Purchaser who
so requests to provide compliance documentation that such personnel are
in compliance with the above-referenced Proclamation; and
(g)
Will provide to Enterprise Services or Purchaser, upon request, Contractor’s
COVID-19 Vaccination Verification Plan and related records, except as
prohibited by law, and will cooperate with any investigation or inquiry
pertaining to the same.
5.
U
SING THE
M
ASTER
C
ONTRACT
–
P
URCHASES
.
5.1.
O
RDERING
R
EQUIREMENTS
. Eligible Purchasers shall order services from this Master Contract,
consistent with the terms hereof and by using any ordering mechanism agreeable both to
Contractor and Purchaser but, at a minimum, including the use of a purchase order. When
practicable, Contractor and Purchaser also shall use telephone orders, email orders, web-
based orders, and similar procurement methods (collectively “Purchaser Order”). All order
documents must reference the Master Contract number. The terms of this Master Contract
shall apply to any Purchase Order and, in the event of any conflict, the terms of this Master
Contract shall prevail. Notwithstanding any provision to the contrary, in no event shall any
‘click-agreement,’ software or web-based application terms and conditions, or other
agreement modify the terms and conditions of this Master Contract.
5.2.
R
ECEIPT AND
R
EVIEW OF
S
ERVICES
. Services provided under this Master Contract are subject to
Purchaser’s reasonable review and approval. Purchaser reserves the right to reject and refuse
acceptance of services that are not in accordance with this Master Contract and Purchaser’s
Purchaser Order. If there are any apparent issues or discrepancies in the services at the time
of review, Purchaser will promptly notify Contractor. At Purchaser’s option, and without
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limiting any other rights, Purchase may require Contractor to correct or replace, at
Contractor’s expense, any or all of the incorrect services.
5.3.
O
N
S
ITE
R
EQUIREMENTS
. While on Purchaser’s premises, Contractor, its agents, employees, or
subcontractors shall comply, in all respects, with Purchaser’s physical, fire, access, safety, and
other security requirements.
5.4.
T
RAVEL
C
OSTS
. Travel will only be paid at the behest/discretion of the Purchaser for work
performed for and at the Not to Exceed Rate set forth in
Exhibit B – Prices for Services
. Per
diem, accommodations, and other related items will only be paid at the behest/discretion of
the Purchaser;
Provided
, however, that such costs must be agreed to in writing in advance,
consistent with this Master Contract, and in accordance with the
Washington Office of
Financial Management’s State Administrative & Accounting Manual (SAAM), Chapter 10
.
6.
I
NVOICING
&
P
AYMENT
.
6.1.
C
ONTRACTOR
I
NVOICE
. Contractor shall submit to Purchaser’s designated invoicing contact
properly itemized invoices. Such invoices shall itemize the following:
(a)
Master Contract No. 01620
(b)
Contractor name, address, telephone number, and email address for billing issues
(i.e., Contractor Customer Service Representative)
(c)
Contractor’s Federal Tax Identification Number
(d)
Date(s) of delivery
(e)
Invoice amount; and
(f)
Payment terms, including any available prompt payment discounts.
Contractor’s invoices for payment shall reflect accurate Master Contract prices. Invoices will
not be processed for payment until receipt of a complete invoice as specified herein. Travel
costs, if authorized, must be set forth as a separate line item with detail sufficient to ascertain
compliance with this Master Contract.
6.2.
P
AYMENT
. Payment is the sole responsibility of, and will be made by, the Purchaser. Payment
is due within thirty (30) days of invoice. If Purchaser fails to make timely payment(s),
Contractor may invoice Purchaser in the amount of one percent (1%) per month on the
amount overdue or a minimum of $1. Payment will not be considered late if a check or
warrant is mailed within the time specified.
6.3.
O
VERPAYMENTS
. Contractor promptly shall refund to Purchaser the full amount of any
erroneous payment or overpayment. Such refunds shall occur within thirty (30) days of
written notice to Contractor;
Provided
, however, that Purchaser shall have the right to elect
to have either direct payments or written credit memos issued. If Contractor fails to make
timely payment(s) or issuance of such credit memos, Purchaser may impose a one percent
(1%) per month on the amount overdue thirty (30) days after notice to the Contractor.
6.4.
N
O
A
DVANCE
P
AYMENT
. No advance payments shall be made for any products or services
furnished by Contractor pursuant to this Master Contract.
6.5.
N
O
A
DDITIONAL
C
HARGES
. Unless otherwise specified herein, Contractor shall not include or
impose any additional charges including, but not limited to, charges for shipping, handling, or
payment processing.
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6.6.
T
AXES
/F
EES
. Contractor promptly shall pay all applicable taxes on its operations and activities
pertaining to this Master Contract. Failure to do so shall constitute breach of this Master
Contract. Unless otherwise agreed, Purchaser shall pay applicable sales tax imposed by the
State of Washington on purchased services. Contractor, however, shall not make any charge
for federal excise taxes and Purchaser agrees to furnish Contractor with an exemption
certificate where appropriate.
7.
C
ONTRACT
M
ANAGEMENT
.
7.1.
C
ONTRACT
A
DMINISTRATION
& N
OTICES
. Except for legal notices, the parties hereby designate the
following contract administrators as the respective single points of contact for purposes of
this Master Contract. Enterprise Services’ contract administrator shall provide Master
Contract oversight. Contractor’s contract administrator shall be Contractor’s principal
contact for business activities under this Master Contract. The parties may change contractor
administrators by written notice as set forth below.
Any notices required or desired shall be in writing and sent by U.S. mail, postage prepaid, or
sent via email, and shall be sent to the respective addressee at the respective address or email
address set forth below or to such other address or email address as the parties may specify
in writing:
Enterprise Services
Contractor
Attn: Clayton Long
Washington Dept. of Enterprise Services
PO Box 41411
Olympia, WA 98504-1411
Tel: (360) 407-8508
Email: clayton.long@des.wa.gov
Attn: Rakesh Duttagupta
Deloitte Consulting LLP
711 Capitol Way South Suite 102
Olympia, WA 98501
Tel: (916)761-6466
Email: rduttagupta@deloitte.com
Notices shall be deemed effective upon the earlier of receipt, if mailed, or, if emailed, upon
transmission to the designated email address of said addressee.
7.2.
C
ONTRACTOR
C
USTOMER
S
ERVICE
R
EPRESENTATIVE
. Contractor shall designate a customer service
representative (and inform Enterprise Services of the same) who shall be responsible for
addressing Purchaser issues pertaining to this Master Contract.
7.3.
L
EGAL
N
OTICES
. Any legal notices required or desired shall be in writing and delivered by U.S.
certified mail, return receipt requested, postage prepaid, or sent via email, and shall be sent
to the respective addressee at the respective address or email address set forth below or to
such other address or email address as the parties may specify in writing:
Enterprise Services
Contractor
Attn: Legal Services Manager
Washington Dept. of Enterprise Services
PO Box 41411
Olympia, WA 98504-1411
Email: greg.tolbert@des.wa.gov
Attn: Rakesh Duttagupta
Deloitte Consulting LLP
711 Capitol Way South Suite 102
Olympia, WA 98501
Email: rduttagupta@deloitte.com
Notices shall be deemed effective upon the earlier of receipt when delivered, or, if mailed,
upon return receipt, or, if emailed, upon transmission to the designated email address of said
addressee.
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8.
C
ONTRACTOR
S
ALES
R
EPORTING
;
V
ENDOR
M
ANAGEMENT
F
EE
;
&
C
ONTRACTOR
R
EPORTS
.
8.1.
M
ASTER
C
ONTRACT
S
ALES
R
EPORTING
. Contractor shall report total Master Contract sales
quarterly to Enterprise Services, as set forth below.
(a)
Master Contract Sales Reporting System. Contractor shall report quarterly
Master Contract sales in Enterprise Services’ Master Contract Sales Reporting
System. Enterprise Services will provide Contractor with a login password and a
vendor number. The password and vendor number will be provided to the Sales
Reporting Representative(s) listed on Contractor’s Bidder Profile.
(b)
Data. Each sales report must identify every authorized Purchaser by name as it is
known to Enterprise Services and its total combined sales amount invoiced during
the reporting period (i.e., sales of an entire agency or political subdivision, not its
individual subsections). The “Miscellaneous” option may be used only with prior
approval by Enterprise Services. Upon request, Contractor shall provide contact
information for all authorized Purchasers specified herein during the term of the
Master Contract. If there are no Master Contract sales during the reporting
period, Contractor must report zero sales.
(c)
Due dates for Master Contract Sales Reporting. Quarterly Master Contract Sales
Reports must be submitted electronically by the following deadlines for all sales
invoiced during the applicable calendar quarter:
F
OR
C
ALENDAR
Q
UARTER
E
NDING
M
ASTER
C
ONTRACT
S
ALES
R
EPORT
D
UE
March 31: April 30
June 30: July 31
September 30: October 31
December 31: January 31
8.2.
V
ENDOR
M
ANAGEMENT
F
EE
. Contractor shall pay to Enterprise Services a vendor management
fee (“VMF”) of 1.5 percent on the purchase price for all Master Contract sales (the purchase
price is the total invoice price less applicable sales tax).
(a)
The sum owed by Contractor to Enterprise Services as a result of the VMF is
calculated as follows:
Amount owed to Enterprise Services = Total Master Contract
sales invoiced (not including sales tax) x .015.
(b)
The VMF must be rolled into Contractor’s current pricing. The VMF must not be
shown as a separate line item on any invoice unless specifically requested and
approved by Enterprise Services.
(c)
Enterprise Services will invoice Contractor quarterly based on Master Contract
sales reported by Contractor. Contractors are not to remit payment until they
receive an invoice from Enterprise Services. Contractor’s VMF payment to
Enterprise Services must reference this Master Contract number, work request
number (if applicable), the year and quarter for which the VMF is being remitted,
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and the Contractor’s name as set forth in this Master Contract, if not already
included on the face of the check.
(d)
Failure to accurately report total net sales, to submit a timely usage report, or
remit timely payment of the VMF, may be cause for Master Contract suspension
or termination or the exercise of other remedies provided by law. Without
limiting any other available remedies, the Parties agree that Contractor’s failure
to remit to Enterprise Services timely payment of the VMF shall obligate
Contractor to pay to Enterprise Services, to offset the administrative and
transaction costs incurred by the State to identify, process, and collect such sums,
the sum of $200.00 or twenty-five percent (25%) of the outstanding amount,
whichever is greater, or the maximum allowed by law, if less.
(e)
Enterprise Services reserves the right, upon thirty (30) days advance written
notice, to increase, reduce, or eliminate the VMF for subsequent purchases, and
reserves the right to renegotiate Master Contract pricing with Contractor when
any subsequent adjustment of the VMF might justify a change in pricing.
8.3.
A
NNUAL
M
ASTER
C
ONTRACT
S
ALES
R
EPORT
. Contractor shall provide to Enterprise Services a
detailed annual Master Contract sales report. Such report shall include, at a minimum:
Service description and Master Contract price. This report must be provided in an electronic
format that can be read by Microsoft (MS) Excel.
9.
R
ECORDS
R
ETENTION
&
A
UDITS
.
9.1.
R
ECORDS
R
ETENTION
. Contractor shall maintain books, records, documents, and other evidence
pertaining to this Master Contract and orders placed by Purchasers under it to the extent and
in such detail as shall adequately reflect performance and administration of payments and
fees. Contractor shall retain such records for a period of six (6) years following expiration or
termination of this Master Contract or final payment for any order placed by a Purchaser
against this Master Contract, whichever is later;
Provided
, however, that if any litigation,
claim, or audit is commenced prior to the expiration of this period, such period shall extend
until all such litigation, claims, or audits have been resolved.
9.2.
A
UDIT
. Enterprise Services reserves the right to audit, or have a designated third party audit,
upon reasonable notice to Contractor and during normal business hours, applicable records
to ensure that Contractor has properly invoiced Purchasers and that Contractor has paid all
applicable vendor management fees. Accordingly, Contractor shall permit Enterprise
Services, any Purchaser, and any other duly authorized agent of a governmental agency, to
audit, inspect, examine, copy and/or transcribe Contractor’s books, documents, papers, and
records directly pertinent to this Master Contract or orders placed by a Purchaser under it for
the purpose of making audits, examinations, excerpts, and transcriptions. This right shall
survive for a period of six (6) years following expiration or termination of this Master Contract
or final payment for any order placed by a Purchaser against this Master Contract, whichever
is later;
Provided
, however, that if any litigation, claim, or audit is commenced prior to the
expiration of this period, such period shall extend until all such litigation, claims, or audits
have been resolved.
9.3.
O
VERBILLING OF
P
URCHASES OR
U
NDERPAYMENT OF
F
EES
. Without limiting any other remedy
available to any Purchaser, Contractor shall (a) reimburse Purchasers for any overbilling
inconsistent with the terms of this Master Contract or orders, at a rate of 125% of such
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overpayments, found as a result of the examination of the Contractor’s records; and
(b) reimburse Enterprise Services for any underpayment of fees, at a rate of 125% of such fees
found as a result of the examination of the Contractor’s records (e.g., if Contractor underpays
the Vendor Management Fee by $500, Contractor would be required to pay to Enterprise
Services $500 x 1.25 = $625).
10.
I
NSURANCE
.
10.1.
R
EQUIRED
I
NSURANCE
. During the Term of this Master Contract, Contractor, at its expense, shall
maintain in full force and effect the insurance coverages set forth in
Exhibit C – Insurance
Requirements
. All costs for insurance, including any payments of deductible amounts, shall
be considered incidental to and included in the prices for services and no additional payment
shall be made.
10.2.
W
ORKERS
C
OMPENSATION
. Contractor shall comply with applicable workers compensation
statutes and regulations (e.g., RCW Title 51, Industrial Insurance). If Contractor fails to
provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its
employees as may be required by law, Enterprise Services may terminate this Master
Contract. This provision does not waive any of the Washington State Department of Labor
and Industries (L&I) rights to collect from Contractor. In addition, Contractor waives its
immunity under RCW Title 51 to the extent it is required to indemnify, defend, and hold
harmless the State of Washington and its agencies, officials, agents, or employees.
11.
C
LAIMS
.
11.1.
A
SSUMPTION OF
R
ISKS
; C
LAIMS
B
ETWEEN THE
P
ARTIES
. Contractor assumes sole responsibility and
all risks of personal injury or property damage to itself and its employees and agents in
connection with its operations under this Master Contract. Enterprise Services has made no
representations regarding any factor affecting Contractor’s risks. Contractor shall pay for all
damage to any Purchaser’s property resulting directly or indirectly from its acts or omissions
under this Master Contract.
11.2.
T
HIRD
-P
ARTY
C
LAIMS
; I
NDEMNITY
. The Contractor agrees, to the fullest extent permitted by law,
to indemnify and hold harmless the Enterprise Services and any Purchaser and their
employees and agents against damages, liabilities, and costs arising from the negligent acts
of the Contractor in the performance of professional services under this Agreement, to the
extent that Contractor is responsible for such damages, liabilities, and costs on a comparative
basis of fault and responsibility between the Contractor and Purchaser. The Contractor shall
not be obligated to indemnify the Purchaser for the Purchaser’s own negligence.
12.
D
ISPUTE
R
ESOLUTION
. The parties shall cooperate to resolve any dispute pertaining to this Master
Contract efficiently, as timely as practicable, and at the lowest possible level with authority to resolve
such dispute. If, however, a dispute persists and cannot be resolved, it may be escalated within each
organization. In such situation, upon notice by either party, each party, within five (5) business days
shall reduce its description of the dispute to writing and deliver it to the other party. The receiving
party then shall have three (3) business days to review and respond in writing. In the event that the
parties cannot then agree on a resolution of the dispute, the parties shall schedule a conference
between the respective senior managers of each organization to attempt to resolve the dispute. In
the event the parties cannot agree, either party may resort to court to resolve the dispute.
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13.
S
USPENSION
&
T
ERMINATION
;
R
EMEDIES
.
13.1.
S
USPENSION
& T
ERMINATION FOR
D
EFAULT
. Enterprise Services may suspend Contractor’s
operations under this Master Contract immediately by written cure notice of any default.
Suspension shall continue until the default is remedied to Enterprise Services’ reasonable
satisfaction;
Provided
, however, that, if after thirty (30) days from such a suspension notice,
Contractor remains in default, Enterprise Services may terminate Contractor’s rights under
this Master Contract. All of Contractor’s obligations to Enterprise Services and Purchasers
survive termination of Contractor’s rights under this Master Contract, until such obligations
have been fulfilled.
13.2.
D
EFAULT
. Each of the following events shall constitute default of this Master Contract by
Contractor:
(a)
Contractor fails to perform or comply with any of the terms or conditions of this
Master Contract including, but not limited to, Contractor’s obligation to pay vendor
management fees when due;
(b)
Contractor breaches any representation or warranty provided herein; or
(c)
Contractor enters into proceedings relating to bankruptcy, whether voluntary or
involuntary.
13.3.
R
EMEDIES FOR
D
EFAULT
.
(a)
Enterprise Services’ rights to suspend and terminate Contractor’s rights under this
Master Contract are in addition to all other available remedies.
(b)
In the event of termination for default, Enterprise Services may exercise any remedy
provided by law including, without limitation, the right to procure for all Purchasers
replacement goods and/or services. In such event, Contractor shall be liable to
Enterprise Services for damages as authorized by law including, but not limited to,
any price difference between the Master Contract price and the replacement or
cover price as well as any administrative and/or transaction costs directly related to
such replacement procurement – e.g., the cost of the competitive procurement.
13.4.
L
IMITATION ON
D
AMAGES
. Notwithstanding any provision to the contrary, the parties agree that
in no event shall any party or Purchaser be liable to the other for exemplary or punitive
damages.
13.5.
G
OVERNMENTAL
T
ERMINATION
.
(a)
Termination for Withdrawal of Authority. Enterprise Services may suspend or
terminate this Master Contract if, during the term hereof, Enterprise Services’
procurement authority is withdrawn, reduced, or limited such that Enterprise
Services, in its judgment, would lack authority to enter into this Master Contract;
Provided
, however, that such suspension or termination for withdrawal of authority
shall only be effective upon twenty (20) days prior written notice; and
Provided
further
, that such suspension or termination for withdrawal of authority shall not
relieve any Purchaser from payment for goods and/or services already ordered as of
the effective date of such notice. Except as stated in this provision, in the event of
such suspension or termination for withdrawal of authority, neither Enterprise
Services nor any Purchaser shall have any obligation or liability to Contractor.
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(b)
Termination for Public Convenience. Enterprise Services, for public convenience,
may terminate this Master Contract;
Provided
, however, that such termination for
public convenience must, in Enterprise Services’ judgment, be in the best interest of
the State of Washington; and
Provided further
, that such termination for public
convenience shall only be effective upon sixty (60) days prior written notice; and
Provided further
, that such termination for public convenience shall not relieve any
Purchaser from payment for goods and/or services already ordered as of the
effective date of such notice. Except as stated in this provision, in the event of such
termination for public convenience, neither Enterprise Services nor any Purchaser
shall have any obligation or liability to Contractor.
13.6.
T
ERMINATION
P
ROCEDURE
. Regardless of basis, in the event of suspension or termination (in full
or in part), the parties shall cooperate to ensure an orderly and efficient suspension or
termination. Accordingly, Contractor shall deliver to Purchasers all goods and/or services that
are complete (or with approval from Enterprise Services, substantially complete) and
Purchasers shall inspect, accept, and pay for the same in accordance with this Master Contract
and the applicable Purchase Order. Unless directed by Enterprise Services to the contrary,
Contractor shall not process any orders after notice of suspension or termination inconsistent
therewith.
14.
G
ENERAL
P
ROVISIONS
.
14.1.
T
IME
I
S OF THE
E
SSENCE
. Time is of the essence for each and every provision of this Master
Contract.
14.2.
C
OMPLIANCE WITH
L
AW
. Contractor shall comply with all applicable law.
14.3.
I
NTEGRATED
A
GREEMENT
. This Master Contract constitutes the entire agreement and
understanding of the parties with respect to the subject matter and supersedes all prior
negotiations, representations, and understandings between them. There are no
representations or understandings of any kind not set forth herein.
14.4.
A
MENDMENT OR
M
ODIFICATION
. Except as set forth herein, this Master Contract may not be
amended or modified except in writing and signed by a duly authorized representative of each
party.
14.5.
A
UTHORITY
. Each party to this Master Contract, and each individual signing on behalf of each
party, hereby represents and warrants to the other that it has full power and authority to
enter into this Master Contract and that its execution, delivery, and performance of this
Master Contract has been fully authorized and approved, and that no further approvals or
consents are required to bind such party.
14.6.
N
O
A
GENCY
. The parties agree that no agency, partnership, or joint venture of any kind shall
be or is intended to be created by or under this Master Contract. Neither party is an agent of
the other party nor authorized to obligate it.
14.7.
A
SSIGNMENT
. Contractor may not assign its rights under this Master Contract without
Enterprise Services’ prior written consent and Enterprise Services may consider any
attempted assignment without such consent to be void;
Provided
, however, that, if Contractor
provides written notice to Enterprise Services within thirty (30) days, Contractor may assign
its rights under this Master Contract in full to any parent, subsidiary, or affiliate of Contractor
that controls or is controlled by or under common control with Contractor, is merged or
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consolidated with Contractor, or purchases a majority or controlling interest in the ownership
or assets of Contractor. Unless otherwise agreed, Contractor guarantees prompt
performance of all obligations under this Master Contract notwithstanding any prior
assignment of its rights.
14.8.
B
INDING
E
FFECT
; S
UCCESSORS
& A
SSIGNS
. This Master Contract shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and assigns.
14.9.
P
UBLIC
I
NFORMATION
.
This Master Contract and all related documents are subject to public
disclosure as required by Washington’s Public Records Act, RCW chapter 42.56.
14.10.
A
SSIGNMENT OF
A
NTITRUST
R
IGHTS
R
EGARDING
P
URCHASED
G
OODS
/S
ERVICES
. Contractor irrevocably
assigns to Enterprise Services, on behalf of the State of Washington, any claim for relief or
cause of action which the Contractor now has or which may accrue to the Contractor in the
future by reason of any violation of state or federal antitrust laws in connection with any
goods and/or services provided in Washington for the purpose of carrying out the
Contractor’s obligations under this Master Contract, including, at Enterprise Services' option,
the right to control any such litigation on such claim for relief or cause of action.
14.11.
F
EDERAL
F
UNDS
. To the extent that any Purchaser uses federal funds to purchase goods and/or
services pursuant to this Master Contract, such Purchaser shall specify, with its order, any
applicable requirement or certification that must be satisfied by Contractor at the time the
order is placed or upon delivery.
14.12.
S
EVERABILITY
. If any provision of this Master Contract is held to be invalid or unenforceable,
such provision shall not affect or invalidate the remainder of this Master Contract, and to this
end the provisions of this Master Contract are declared to be severable. If such invalidity
becomes known or apparent to the parties, the parties agree to negotiate promptly in good
faith in an attempt to amend such provision as nearly as possible to be consistent with the
intent of this Master Contract.
14.13.
W
AIVER
. Failure of either party to insist upon the strict performance of any of the terms and
conditions hereof, or failure to exercise any rights or remedies provided herein or by law, or
to notify the other party in the event of breach, shall not release the other party of any of its
obligations under this Master Contract, nor shall any purported oral modification or rescission
of this Master Contract by either party operate as a waiver of any of the terms hereof. No
waiver by either party of any breach, default, or violation of any term, warranty,
representation, contract, covenant, right, condition, or provision hereof shall constitute
waiver of any subsequent breach, default, or violation of the same or other term, warranty,
representation, contract, covenant, right, condition, or provision.
14.14.
S
URVIVAL
. All representations, warranties, covenants, agreements, and indemnities set forth
in or otherwise made pursuant to this Master Contract shall survive and remain in effect
following the expiration or termination of this Master Contract,
Provided
, however, that
nothing herein is intended to extend the survival beyond any applicable statute of limitations
periods.
14.15.
G
OVERNING
L
AW
. The validity, construction, performance, and enforcement of this Master
Contract shall be governed by and construed in accordance with the laws of the State of
Washington, without regard to its choice of law rules.
14.16.
J
URISDICTION
& V
ENUE
. In the event that any action is brought to enforce any provision of this
Master Contract, the parties agree to exclusive jurisdiction in Thurston County Superior Court
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for the State of Washington and agree that in any such action venue shall lie exclusively at
Olympia, Washington.
14.17.
A
TTORNEYS
’ F
EES
. Should any legal action or proceeding be commenced by either party in order
to enforce this Master Contract or any provision hereof, or in connection with any alleged
dispute, breach, default, or misrepresentation in connection with any provision herein
contained, the prevailing party shall be entitled to recover reasonable attorneys’ fees and
costs incurred in connection with such action or proceeding, including costs of pursuing or
defending any legal action, including, without limitation, any appeal, discovery, or negotiation
and preparation of settlement arrangements, in addition to such other relief as may be
granted.
14.18.
F
AIR
C
ONSTRUCTION
& I
NTERPRETATION
. The provisions of this Master Contract shall be construed
as a whole according to their common meaning and not strictly for or against any party and
consistent with the provisions contained herein in order to achieve the objectives and
purposes of this Master Contract. Each party hereto and its counsel has reviewed and revised
this Master Contract and agrees that the normal rules of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be construed in the
interpretation of this Master Contract. Each term and provision of this Master Contract to be
performed by either party shall be construed to be both a covenant and a condition.
14.19.
F
URTHER
A
SSURANCES
. In addition to the actions specifically mentioned in this Master Contract,
the parties shall each do whatever may reasonably be necessary to accomplish the
transactions contemplated in this Master Contract including, without limitation, executing
any additional documents reasonably necessary to effectuate the provisions and purposes of
this Master Contract.
14.20.
E
XHIBITS
. All exhibits referred to herein are deemed to be incorporated in this Master Contract
in their entirety.
14.21.
C
APTIONS
& H
EADINGS
. The captions and headings in this Master Contract are for convenience
only and are not intended to, and shall not be construed to, limit, enlarge, or affect the scope
or intent of this Master Contract nor the meaning of any provisions hereof.
14.22.
E
LECTRONIC
S
IGNATURES
. A signed copy of this Master Contract or any other ancillary agreement
transmitted by facsimile, email, or other means of electronic transmission shall be deemed to
have the same legal effect as delivery of an original executed copy of this Master Contract or
such other ancillary agreement for all purposes.
14.23.
I
NTELLECTUAL
P
ROPERTY
. - Upon Contractor’s completion of the Services, provision to Purchaser
of the final deliverables, and Purchaser’s final payment for the Services and deliverables,
Purchaser will retain ownership of all reports and other deliverables prepared for and
furnished to Purchaser by Contractor in connection with the Services; provided that
Contractor is free to copy, use, share, and disclose the deliverables. Contractor further retains
ownership of all underlying methodologies; it being understood that none of the underlying
methodologies will contain Purchaser’s Confidential Information. To the extent the
deliverables include any embedded underlying methodologies, Contractor hereby grants
Purchaser a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free
license, in perpetuity, to use and copy the underlying methodologies solely as part of the
Deliverables. Purchaser agrees that, without Contractor’s prior written permission, it will not
access, copy, or reverse engineer any underlying methodology.
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14.24.
C
OUNTERPARTS
. This Master Contract may be executed in any number of counterparts, each of
which shall be deemed an original and all of which counterparts together shall constitute the
same instrument which may be sufficiently evidenced by one counterpart. Execution of this
Master Contract at different times and places by the parties shall not affect the validity
thereof so long as all the parties hereto execute a counterpart of this Master Contract.
E
XECUTED
as of the date and year first above written.
S
TATE OF
W
ASHINGTON
Department of Enterprise Services
D
ELOITTE
C
ONSULTING
LLP,
By:
Alexander Kenesson
Alexander Kenesson
By:
Rakesh Duttagupta
Its:
Procurement Supervisor
Its:
Principal
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E
XHIBIT
A
I
NCLUDED
B
USINESS
C
ONSULTING
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C
ONTRACT
D
ESCRIPTION AND
S
COPE
R
EQUIREMENTS FOR
A
LL
C
ATEGORIES
Whether work is conducted under this Master Contract, Contractor and its subcontractors, shall:
1.
Apply a holistic and systemic approach to improve performance through root cause analysis.
2.
Focus on qualitative and quantitative data (using approaches such as assessments, surveys,
one-on-one interviews, focus groups, observations, existing documents, metrics, archives,
etc.)
3.
Maintain objectivity and the highest levels of integrity.
4.
Balance the diverse needs, perspectives, and opinions of the people involved.
5.
Create a safe learning environment based on mutual respect and trust.
6.
Consult with project sponsors and key stakeholders to design and implement organizational
effectiveness solutions in such a way that the organization owns the process and the results.
7.
Establish psychological safety within organizations – Workplace safety is important for a
healthy workplace, improving Diversity, Equity, and Inclusion (DEI) within a team/agency,
change management, and post trauma incident (i.e. impact from community trust, harm that
happened to a team member, COVID-19). This scope does not include individual counseling
or group counseling, which is offered by the state EAP.
8.
Create an inclusive team/agency as it relates to Diversity, Equity, and Inclusion – Specific
methodology and practices to create equitable inclusion of employees as their authentic self
and providing inclusive services for the public. This scope would not include efforts that are
specific to IT systems or website design, which are under the DES IT Professional Services
program. Consultants must be able to demonstrate a methodology that can be measured
and show past successes in improving organizational culture.
9.
Create or support in creating inclusive policies, plans, processes, reports, and metrics. While
this scope could include evaluating all systems, this scope will not include enhancing IT system
or website design, which is under the DES IT Professional Services program.
Contractor must also be able to:
1.
Utilize industry accepted practices for the applicable category.
2.
Demonstrate understanding, amplify, and utilize the
Washington State Enterprise Leadership
Competencies
and the Enterprise DEI Competencies for all employees posted by the
DEI
Committee of the Office of Financial Management
, and titled “Enterprise DEI Competencies
– All Employees – A pathway for success [PDF]”.
3.
Elicit requirements through interviews, document analysis, requirements workshops, surveys,
site visits, business process descriptions, use cases, scenarios, business analysis, and task and
workflow analysis.
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4.
Critically evaluate information gathered from multiple sources, reconcile conflicts,
deconstruct high-level information into details, abstract up from low-level information to a
general understanding, and distinguish user requests from the underlying needs.
5.
Proactively communicate and collaborate with external and internal customers to analyze
information needs and functional requirements and demonstrate understanding of the
import of public service taking action with the community instead of for the community with
particular attention to historically disenfranchised communities.
6.
Successfully engage in multiple initiatives simultaneously.
7.
Work independently with users to define concepts and under direction of project managers.
8.
Drive and challenge business units on their assumptions of how they will successfully execute
their plans.
9.
Provide strong analytical and product management skills, including a thorough understanding
of how to interpret customer business needs and translate them into application and
operational requirements.
10.
Demonstrate excellent verbal and written communication skills and the ability to interact
professionally with a diverse group, executives, managers, and subject matter experts.
11.
Demonstrate self-awareness, knowledge, understanding and commitment to creating and
improving a diverse, equitable, respectful, and inclusive workplace.
12.
Serve as the conduit between the customer community (internal and external customers) and
the development team through which requirements flow.
13.
Develop requirements specifications according to standard templates, using natural
language.
14.
Collaborate with developers and subject matter experts to establish vision and analyze
tradeoffs between usability and performance needs.
15.
Be the liaison between the business units, technology teams and support teams.
16.
Engage in high-level strategies.
17.
Use strategy models to determine direction.
18.
Help organizations to improve their performance, operating primarily through the analysis of
existing organizational problems and the development of plans for improvement.
19.
Utilize knowledge, skills and awareness for building work environments grounded in diversity,
equity, inclusion, and respect where people thrive, missions are accomplished, and the public
is served.
20.
Find ways to improve an organization’s efficiency and increase profits.
21.
Collect and analyze data about how a company works and then recommend changes that will
decrease costs or boost revenue.
22.
Present suggestions as a written report and oral presentation, which can help entities
implement their recommendations.
C
ATEGORY
-
O
RGANIZATIONAL
D
EVELOPMENT
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O
RGANIZATIONAL
D
EVELOPMENT
is a category devoted to improving the functioning of an organization’s
employees, work units, culture, management and business systems, processes, and structure. Contractor
agrees to offer all of the disciplines below for this category and as further defined in Purchaser’s scope of
work:
E
XECUTIVE
C
OACHING
is a professional relationship between a trained coach and a client (who may be
an individual or a group) with the goal to enhance the client's leadership or management performance
and development. Executive coaches assist t
op executives, managers, and other identified leaders to
perform, learn, stay healthy and balanced, and effectively guide their teams to successfully reach
desired goals and exceed individual and corporate expectations. Such coaching enables leaders to
unlock and unleash their full-potential so they bring greater value and abundance to the people and
entities they serve. Executive coaches facilitate solutions through interactive dialog with the client,
and use discoveries to compile data, provide feedback to management, identify development
opportunities, build awareness, set goals, and create strategy plans, facilitate learning, support, and
encourage leaders over the long term, and monitor and assess progress.
Concerning Diversity, Equity, and Inclusion, shall assist agencies and institutions in the following:
•
Assisting in developing priorities, goals, and strategies for creating a diverse, inclusive,
and culturally competent workforce;
•
Establishing both internal and external committees to advise state government on
workforce diversity policy and strategy, including convening cross agency/institution
work groups to develop and coordinate enterprise-wide diversity and inclusion
initiatives;
•
Establishing streamlined agency, institution, and statewide workforce diversity
reporting requirements;
•
Reviewing, evaluating, and implementing agency and institution workforce diversity
plans, policies, and strategies
•
Developing and delivering annual reports to the Governor on the state’s progress
towards creating a diverse, inclusive, and culturally competent workforce.
T
EAM
D
EVELOPMENT
C
OACHING
is a process of developing teams to be effective change agents for their
organization. T
he purpose of team building is to increase trust, improve communication, increase
collaboration, and increase or maintain motivation. Effective team development motivates people to
work together, develop their strengths, and address any weaknesses. Team building exercises and
encourage collaboration rather than competition. Team Development Coaches
create a safe
environment to learn by encouraging cooperation, teamwork, interdependence, and by building trust
among team members. Team Development Coaches lead teams through accepted team
development techniques, to include five stages of Team Development: Forming, Storming, Norming,
Performing, and Adjourning.
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C
OACHING
W
ORKSHOPS
ensure sustained learning and application of skills over a wide variety of
situations. These workshops support learners, clients and teams in achieving a specific goals by
providing training and guidance. Coaching workshops focus on specific tasks or objectives as required
by the client, as opposed to more general goals or overall development. Workshops increase the level
of knowledge regarding a specific subject while also increasing effectiveness in the team or
organization, and provide interactive training that transforms learners through the experience,
equipping them to continue making progress when they return to work.
C
ATEGORY
-
C
HANGE
M
ANAGEMENT
C
HANGE
M
ANAGEMENT
is a systematic approach to dealing with the transition or transformation of an
organization's goals, processes, or technologies. The purpose of change management is to implement
strategies for effecting change, controlling change, and helping people to adapt to change.
Contractor
agrees to offer all of the disciplines below for this category and as further defined in Purchaser’s scope
of work:
a.
All approaches to prepare, support, and help individuals, teams, and organizations make
organizational change. The most common change drivers include: technological and cultural
evolution, process reviews, crisis management, consumer habit changes, pressure from new
business entrants, acquisitions, mergers, and organizational restructuring.
b.
Preparing, supporting, and helping individuals, teams, and organizations in accomplishing
organizational change.
c.
Includes methods that redirect or redefine the use of resources, business process, budget
allocations, or other modes of operation that significantly change a company or organization.
It deals with many different disciplines, from behavioral and social sciences to information
technology and business solutions.
d.
Considering the full organization and what needs to change, while change management solely
refers to how people and teams are affected by organizational transitions.
e.
Coaches to lead organizations through change and utilize accepted change management
practices to include at a minimum the 16 principles of change management that may include:
1)
Diagnosing the problem
2)
Lead with culture
3)
Start at the top
4)
Involve every layer
5)
Coalition building
6)
Provide clear instructions
7)
Transparent communication
8)
Training
9)
Questions and concerns
10)
Formal and informal solutions
11)
Accountability
12)
Appreciation
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13)
Ongoing support
14)
Evaluation
15)
Assessment, and
16)
Utilizing technology
f.
Practices including knowledge, skills, and awareness for building work environments
grounded in diversity, equity, inclusion, and respect where people thrive, missions are
accomplished, and the public is served.
S
TRATEGIC
P
LANNING
is a process by which organizations analyze, document, and setting realistic goals
and objectives.
Strategic planning coaches assist entities to define their strategy or direction, and
make resource allocation decisions that support such strategy. Strategic planning coaches utilize
accepted planning strategies, to include t
he five stages: goal-setting, analysis, strategy formation, and
strategy monitoring / implementation.
P
ROCESS
I
MPROVEMENT
is the proactive task of identifying, analyzing, and improving upon existing
business processes, which enables organizations to continuously improve upon existing business
processes to optimize production, quality standards, or any other identified goal, such as cutting cost
or lowering length of time to complete a process. Process Improvement is an ongoing practice, to be
followed up with the analysis of tangible areas of improvement by employing benchmarking
techniques. Process improvement coaches utilize generally accepted process improvement
techniques to include, at a minimum: map the process, analyze the process, redesign the process,
acquire resources, implement, and communicate change, review
the process, and readjust where
required
.
In general, the process improvement process supports needed changes that have been
identified through the management and business analysis process.
C
ATEGORY
-
M
ANAGEMENT AND
B
USINESS
A
NALYSIS
M
ANAGEMENT AND
B
USINESS
A
NALYSIS
is a disciplined approach to identify and define solutions that will
maximize the value delivered by an organization to its stakeholders, with an emphasis on financial
analysis. The Business Analyst is an agent of change. Business analysis is used to identify and articulate
the need for change in how organizations work, and to facilitate that change. Business analysts work
across all levels of an organization and may be involved in defining strategy, creating the enterprise
architecture, and taking a leadership role by defining the goals and requirements for programs and
projects or supporting continuous improvement in its technology and processes. Business analysis seeks
to improve an organization’s business and operations at an executive level, and maximize revenue
and
efficiency. Analysts interact with executives, employees, vendors, and clients to determine the strengths
and weaknesses of an entity, then provide decision-makers with suggestions to improve their entity.
Business Analysts utilize accepted analysis practices, to include the Business Analysis Body of Knowledge
(BABOK Guide). Contractor agrees to offer all of the disciplines below for this category and as further
defined in Purchaser’s scope of work:
S
ERVICES TO ASSIST MANAGEMENT
with operation or management of the agency, unit, or division of
the agency (when related primarily to the business processes of the agency, not to human
resource issues).
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S
ERVICES THAT IMPACT AGENCY POLICY
, regulatory, and business issues or that have broad agency or
statewide policy implications. Services that result in operational or managerial recommendations
(related primarily to business and policy issues), management reports and studies, including those
requested by the Legislature, and feasibility studies with significant policy impact. Services for
needs assessment and business process re-engineering related to the agency’s business and policy
responsibilities.
S
ERVICES FOR PROGRAM DEVELOPMENT
,
implementation, and coordination; program evaluation
and/or external quality review; services for project management and quality assurance services
(exclusive of information technology projects).
S
TAKEHOLDER
A
NALYSIS
to determine who the sponsor and key business stakeholders for a project
will be and anyone else who needs to be involved, the multiple perspectives to be included in the
requirements, and discover anyone else who needs to be involved.
M
AINTAIN REQUIREMENTS
issues lists, contribute to the project implementation plan, and provide
regular status updates. Create meeting agendas, type meeting notes to capture the results of
discussions. Manage change requests as required.
C
HANGE
M
ANAGEMENT
related to this category, to include updating business procedures, checklists,
work aids, or new training materials.
A
SSIST ENTITIES IN MEETING OBJECTIVES AND GOALS
.
Understand how work is conducted, through
analysis and determine solutions to issues. Solutions could include training, process changes, and
modifications to business rules, modifications to or implementation of new technology, or a
combination of all four.
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Exhibit B
P
RICES FOR
S
ERVICES
Category
Not to Exceed Rate
Organizational Development
$205.00 per hour
Change Management
$205.00 per hour
Management and Business Analysis
$205.00 per hour
Authorized Travel Costs
(for labor only, See Section 5.4)
$205.00 per hour
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Exhibit C
I
NSURANCE
R
EQUIREMENTS
1.
I
NSURANCE
O
BLIGATION
. During the Term of this Master Contract, Contractor shall possess and
maintain in full force and effect, at Contractor’s sole expense, the following insurance coverages:
a.
C
OMMERCIAL
G
ENERAL
L
IABILITY
I
NSURANCE
. Commercial general liability insurance (and, if
necessary, commercial umbrella liability insurance) covering bodily injury, property
damage, products/completed operations, personal injury, and advertising injury liability
on an ‘occurrence form’ that shall be no less comprehensive and no more restrictive than
the coverage provided by Insurance Services Office (ISO) under the most recent version
of form CG 00 01 in the amount of not less than $2,000,000 per occurrence and
$4,000,000 general aggregate. This coverage shall include blanket contractual liability
coverage. This coverage shall include a cross-liability clause or separation of insured
condition. If a general aggregate limit applies, either the general aggregate limit shall
apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate
limit shall be twice the required occurrence limit.
b.
W
ORKERS
’ C
OMPENSATION
I
NSURANCE
. Contractor shall comply with applicable Workers’
Compensation or Industrial Accident insurance providing benefits as required by law.
c.
E
MPLOYERS
’ L
IABILITY
(S
TOP
G
AP
) I
NSURANCE
. Employers’ liability insurance (and, if necessary,
commercial umbrella liability insurance) with limits not less than $1,000,000 each
accident for bodily injury by accident, $1,000,000 each employee for bodily injury by
disease, and $1,000,000 bodily injury by disease policy limit.
C
. C
OMMERCIAL
A
UTOMOBILE
L
IABILITY
I
NSURANCE
. (only required if conducting work on
Purchaser’s premises). ‘Symbol 1’ commercial automobile liability coverage (and, if
necessary, commercial umbrella liability insurance) including coverage for all owned,
hired, and non-owned vehicles. The combined single limit per accident shall not be less
than $1,000,000
E
. P
ROFESSIONAL
L
IABILITY
(E
RRORS AND
O
MISSIONS
) I
NSURANCE
. Professional liability insurance in
the amount of not less than $1,000,000 combined single limit per occurrence or claim,
$2,000,000 general annual aggregate for malpractice or errors and omissions coverage
against liability for damages because of personal injury, bodily injury, death, or damage
to property, including the loss of use thereof, and damages because of negligent acts,
errors, and omissions in any way related to this Master Contract. The policy shall have an
extended reporting period of not less than five (5) years after completion.
The insurance coverage limits set forth herein are the minimum. Contractor’s insurance coverage
shall be no less than the minimum amounts specified. Coverage in the amounts of these minimum
limits, however, shall not be construed to relieve Contractor from liability in excess of such limits.
Contractor waives all rights against the State of Washington for the recovery of damages to the
extent such damages are covered by any insurance required herein.
2.
I
NSURANCE
C
ARRIER
R
ATING
. Coverages provided by the Contractor must be underwritten by an
insurance company deemed acceptable to the State of Washington’s Office of Risk Management.
Insurance coverage shall be provided by companies authorized to do business within the State of
Washington and rated A- Class VII or better in the most recently published edition of Best’s
M
ASTER
C
ONTRACT
N
O
. 01620 – B
USINESS
C
ONSULTING
S
ERVICES
(Rev. 2020-03-11)
P
AGE
25
Insurance Rating. Enterprise Services reserves the right to reject all or any insurance carrier(s)
with an unacceptable financial rating.
3.
A
DDITIONAL
I
NSURED
. Commercial General Liability, Commercial Automobile Liability, and Pollution
Liability Insurance shall include the State of Washington and all authorized Purchasers (and their
agents, officers, and employees) as Additional Insureds evidenced by copy of the Additional
Insured Endorsement attached to the Certificate of Insurance on such insurance policies.
4.
C
ERTIFICATE OF
I
NSURANCE
. Prior to execution of the Master Contract, Contractor shall furnish to
Enterprise Services, as evidence of the insurance coverage required by this Master Contract, a
certificate of insurance satisfactory to Enterprise Services that insurance, in the above-stated
kinds and minimum amounts, has been secured. In addition, no less than ten (10) days prior to
coverage expiration, Contractor shall furnish to Enterprise Services an updated or renewed
certificate of insurance, satisfactory to Enterprise Services, that insurance, in the above-stated
kinds and minimum amounts, has been secured. Failure to maintain or provide proof of
insurance, as required, will result in contract cancellation.
All policies and certificates of
insurance shall include the Master Contract number stated on the cover of this Master Contract
.
All certificates of Insurance and any related insurance documents shall be delivered to Enterprise
Services by U.S. mail, postage prepaid, or sent via email, and shall be sent to the address or email
address set forth below or to such other address or email address as Enterprise Services may
specify in writing:
US Mail: Contracts & Procurement – Master Contract Insurance Certificate
Master Contract No. 01620 –Business Consulting Services
Attn: Clayton Long
Washington Dept. of Enterprise Services
PO Box 41411
Olympia, WA 98504-141
Email:
clayton.long@des.wa.gov
Note
: For Email notice, the Email Subject line must state:
Master Contract Insurance Certificate – Master Contract No. 01620 –
Business Consulting Services
5.
P
RIMARY
C
OVERAGE
. Contractor’s insurance shall apply as primary and shall not seek contribution
from any insurance or self-insurance maintained by, or provided to, the additional insureds listed
above including, at a minimum, the State of Washington and/or any Purchaser. All insurance or
self-insurance of the State of Washington and/or Purchasers shall be excess of any insurance
provided by Contractor or subcontractors.
6.
S
UBCONTRACTORS
. Contractor shall include all subcontractors as insureds under all required
insurance policies. Alternatively, prior to utilizing any subcontractor, Contractor shall cause any
such subcontractor to provide insurance that complies with all applicable requirements of the
insurance set forth herein and shall furnish separate Certificates of Insurance and endorsements
for each subcontractor. Each subcontractor must comply fully with all insurance requirements
stated herein. Failure of any subcontractor to comply with insurance requirements does not limit
Contractor’s liability or responsibility.
M
ASTER
C
ONTRACT
N
O
. 01620 – B
USINESS
C
ONSULTING
S
ERVICES
(Rev. 2020-03-11)
P
AGE
26
7.
W
AIVER OF
S
UBROGATION
. Contractor waives all rights of subrogation against the State of
Washington and any Purchaser for the recovery of damages to the extent such damages are or
would be covered by the insurance specified herein.
8.
N
OTICE OF
C
HANGE OR
C
ANCELLATION
. There shall be no cancellation, material change, exhaustion of
aggregate limits, or intent not to renew insurance coverage, either in whole or in part, without at
least sixty (60) days prior written Legal Notice by Contractor to Enterprise Services. Failure to
provide such notice, as required, shall constitute default by Contractor. Any such written notice
shall include the Master Contract number stated on the cover of this Master Contract.
9.
E
XTENDED
R
EPORTING
P
ERIOD
. If any required insurance coverage is on a claims-made basis (rather
than occurrence), Contractor shall maintain such coverage for a period of no less than five (5)
years following expiration or termination of the Master Contract.
C
ONTRACT
N
O
.
01620
-
A
MENDMENT
N
O
.
1
Page 1
(4-24-2017)
State of Washington
Contracts & Procurement Division
Department of Enterprise Services
P.O. Box 41411
Olympia, WA 98504-1411
Deloitte Consulting LLP
821 Second Avenue, Suite 200
Seattle, Washington 98104
F
IRST
A
MENDMENT
TO
C
ONTRACT
N
O
. 01620
B
USINESS
C
ONSULTING
S
ERVICES
This First Amendment (“Amendment”) to Contract No. 01620 is made and entered into by and between
the State of Washington acting by and through the Department of Enterprise Services, a Washington State
governmental agency (“State”) and Deloitte Consulting LLP, a limited liability partnership (“Contractor”)
and is dated as of May 1, 2022.
RECITALS
A.
State and Contractor (collectively the “Parties”) entered into that certain Contract No. 01620 for
Business Consulting Services dated effective as of March 1, 2022 (“Contract”).
B.
The amendment set forth herein is within the scope of the Contract.
C.
The Parties now desire to amend the Contract as set forth herein.
AGREEMENT
N
OW
T
HEREFORE
, in consideration of the mutual covenants and agreements set forth herein, the Parties
hereby agree to amend the Contract, as follows:
1.
I
NCLUDED
B
USINESS
C
ONSULTING
S
ERVICES
. Exhibit A – Included Business Consulting Services of the
Contract is hereby amended by deleting the following:
The second sentence from “Requirements for All Categories”, Number 8
The second sentence from “Requirements for All Categories”, Number 9
The language: “(exclusive of information technology projects)” from Category Management and
Business Analysis, Services for Program Development
2.
N
O
C
HANGE
O
THER
T
HAN
A
MENDMENT
. Except as amended herein, the Contract is unaffected and
remains in full force and effect.
3.
I
NTEGRATED
A
GREEMENT
;
M
ODIFICATION
. This Amendment constitutes the entire agreement and
understanding of the Parties with respect to the subject matter and supersedes all prior
negotiations and representations. In the event of any conflict between this Amendment and the
C
ONTRACT
N
O
.
01620
-
A
MENDMENT
N
O
.
1
Page 2
(4-24-2017)
Contract or any earlier amendment, this Amendment shall control and govern. This Amendment
may not be modified except in writing signed by the Parties.
4.
A
UTHORITY
. Each party to this Amendment, and each individual signing on behalf of each party,
hereby represents and warrants to the other that it has full power and authority to enter into this
Amendment and that its execution, delivery, and performance of this Amendment has been fully
authorized and approved, and that no further approvals or consents are required to bind such
party.
5.
E
LECTRONIC
S
IGNATURES
. A signed copy of this Amendment or any other ancillary agreement
transmitted by facsimile, email, or other means of electronic transmission shall be deemed to
have the same legal effect as delivery of an original executed copy of this Amendment or such
other ancillary agreement for all purposes.
6.
C
OUNTERPARTS
. This Amendment may be executed in one or more counterparts, each of which
shall be deemed an original, and all of which counterparts together shall constitute the same
instrument which may be sufficiently evidenced by one counterpart. Execution of this
Amendment at different times and places by the parties shall not affect the validity thereof so
long as all the parties hereto execute a counterpart of this Amendment.
E
XECUTED AND
E
FFECTIVE
as of the day and date first above written.
D
ELOITTE
C
ONSULTING
LLP,
A LIMITED LIABILITY PARTNERSHIP
By:
__________________________
Name: Rakesh Duttagupta__________
Title:
Principal__________________
Date:
4/26/22__________________
S
TATE OF
W
ASHINGTON
D
EPARTMENT OF
E
NTERPRISE
S
ERVICES
By:
Alexander Kenesson
____________
Name: Alexander Kenesson____________
Title:
Procurement Supervisor_________
Date:
04/26/2022___________________
S
TATEWIDE
C
ONTRACT
N
O
.
01620
-
A
MENDMENT
N
O
.
2
Page 1
(Rev. 2023-02-23)
State of Washington
Contracts & Procurement Division
Department of Enterprise Services
P.O. Box 41411
Olympia, WA 98504-1411
C
ONTRACT
A
MENDMENT
Contract No.: 01620
Deloitte Consulting LLP
821 Second Avenue, Suite 200
Seattle, Washington 98104
Amendment No.: 2
Effective Date: 2/23/2023
S
ECOND
A
MENDMENT
TO
S
TATEWIDE
C
ONTRACT
N
O
. 01620
B
USINESS
C
ONSULTING
S
ERVICES
This Second Amendment (“Amendment”) to Contract No. 01620 is made and entered into by and between
the State of Washington acting by and through the Department of Enterprise Services, a Washington State
governmental agency (“State”) and Deloitte Consulting LLP, a Washington Corporation (“Contractor”) and
is dated as of February 23, 2023.
R E C I T A L S
A.
State and Contractor (collectively the “Parties”) entered into that certain Contract No. 01620 for
Business Consulting Services dated effective as of March 1, 2022 (“Contract”).
B.
The Parties previously amended the Contract one (1) time
a.
Amendment 1, effective May 1, 2022. Exhibit A - Included Business Consulting Services,
Contract Description and Scope, Requirements Section is hereby amended by deleting the
following:
i.
The second sentence from subsection number 8.
ii.
The second sentence from subsection number 9.
C.
The amendment set forth herein is within the scope of the Contract.
D.
The Parties now desire to amend the Contract as set forth herein.
A G R E E M E N T
N
OW
T
HEREFORE
, in consideration of the mutual covenants and agreements set forth herein, the Parties
hereby agree to amend the Contract, as previously amended, as follows:
1.
E
CONOMIC ADJUSTMENT
. Exhibit B – Prices for Goods/Services is hereby amended by deleting the
existing Exhibit B in its entirety and inserting the attached Exhibit B – Prices for Services to
increase by 18.8% from the previous set price.
2.
N
O
C
HANGE
O
THER
T
HAN
A
MENDMENT
. Except as amended herein, the Contract is unaffected and
remains in full force and effect.
S
TATEWIDE
C
ONTRACT
N
O
.
01620
-
A
MENDMENT
N
O
.
2
Page 2
(Rev. 2023-02-23)
3.
I
NTEGRATED
A
GREEMENT
;
M
ODIFICATION
. This Amendment constitutes the entire agreement and
understanding of the Parties with respect to the subject matter and supersedes all prior
negotiations and representations. In the event of any conflict between this Amendment and the
Contract or any earlier amendment, this Amendment shall control and govern. This Amendment
may not be modified except in writing signed by the Parties.
4.
A
UTHORITY
. Each party to this Amendment, and each individual signing on behalf of each party,
hereby represents and warrants to the other that it has full power and authority to enter into this
Amendment and that its execution, delivery, and performance of this Amendment has been fully
authorized and approved, and that no further approvals or consents are required to bind such
party.
5.
E
LECTRONIC
S
IGNATURES
. An electronic signature or electronic record of this Amendment or any
other ancillary agreement shall be deemed to have the same legal effect as delivery of an original
executed copy of this Amendment or such other ancillary agreement for all purposes.
6.
C
OUNTERPARTS
. This Amendment may be executed in one or more counterparts, each of which
shall be deemed an original, and all of which counterparts together shall constitute the same
instrument which may be sufficiently evidenced by one counterpart. Execution of this
Amendment at different times and places by the parties shall not affect the validity thereof so
long as all the parties hereto execute a counterpart of this Amendment.
E
XECUTED AND
E
FFECTIVE
as of the day and date first above written.
D
ELOITTE
C
ONSULTING
LLP
A
W
ASHINGTON
C
ORPORATION
By:
_____________________________
Name: _____________________________
Title:
_____________________________
Date:
_____________________________
S
TATE OF
W
ASHINGTON
D
EPARTMENT OF
E
NTERPRISE
S
ERVICES
By:
_____________________________
Name: Julia Bang
Title:
Contract Specialist
Date:
_____________________________
Rakesh Duttagupta
Principal
3/24/2023
3/27/2023
M
ASTER
C
ONTRACT
N
O
.
01620
–
B
USINESS
C
ONSULTING
S
ERVICES
P
AGE
1
(Rev. 2020-03-11)
Exhibit B
P
RICES FOR
S
ERVICES
Category
Not to Exceed Rate
Organizational Development
$243.54 per hour
Change Management
$243.54 per hour
Management and Business Analysis
$243.54 per hour
Authorized Travel Costs
(for labor only, See Section 5.4)
$243.54 per hour