5-BAFO-Attachment 4 - BPM004453 Comformace Statements and Supplements-FINAL.pdf

Attachment 4: Conformance Statements and Supplements

Solicitation No. BPM004453

DCS IT Maintenance and Operations Services

State of Arizona Department of Child Safety

Office of Procurement & Contracts 3003 N. Central Avenue

Phoenix, AZ 85012

If taking exceptions, the Attachment Supplements must be uploaded as a separate word doc. file titled “Attachment Supplement -”

STATE WILL NOT CONSIDER ANY EXCEPTIONS UNLESS DESIGNATED ON THIS FORM.

READ PARAGRAPH 6.8 OF THE INSTRUCTIONS TO OFFERORS BEFORE TAKING ANY EXCEPTIONS – TAKING EXCEPTIONS

CAN BE GROUNDS FOR STATE REJECTING OR DOWN-GRADING YOUR OFFER IN EVALUATION.

CONFORMANCE TO THE INSTRUCTIONS TO OFFERORS

Check one of the following – if neither is checked, State will assume that as equivalent to “YES”:

YES – Offeror acknowledges that it has read and understands the Special Instructions to Offerors and

Uniform Instructions to Offerors of the Solicitation Documents and attests that its Offer complies.

NO – Offeror acknowledges that it has read and understands the Instructions to Offerors in the

Solicitation Documents, and attests that its Offer complies with both EXCEPT FOR the exceptions listed in Attachment Supplement 1.

CONFORMANCE TO SCOPE OF WORK AND PRICING

Check one of the following – if neither is checked, State will assume that as equivalent to “YES”:

YES – Offeror acknowledges that it has read and understands the Scope of Work Document and the

Pricing Document of the Solicitation Documents and attests that its Offer complies with both.

NO – Offeror acknowledges that it has read and understands the Scope of Work Document and the

Pricing Document of the Solicitation Documents and attests that its Offer complies with both EXCEPT

FOR the exceptions listed in Attachment Supplement 2.

CONFORMANCE TO THE CONTRACT TERMS AND CONDITIONS

Check one of the following – if neither is checked, State will assume that as equivalent to “YES”:

YES – Offeror acknowledges that it has read and understands the Special Terms and Conditions and the

Uniform Terms and Conditions, along with their respective Exhibits and Appendices of the Solicitation

Documents and attests that its Offer complies with both.

NO – Offeror acknowledges that it has read and understand the Special Terms and Conditions and the

Uniform Terms and Conditions, along with their respective Exhibits and Appendices 2 of the Solicitation

Documents and attests that its Offer complies with both EXCEPT FOR the exceptions listed in

Attachment Supplement 3.

Attachment Supplement: Exceptions

State of Arizona Department of Child Safety

Office of Procurement & Contracts

Exceptions to Instructions to Offerors

Article / Paragraph or Exhibit Reference

Proposed Changes / Alternate Language RFP Language (Copy and Paste from Solicitation)

Special Instructions to Offerors

None

Uniform Instructions to Offerors

International Business Machines Corporation (IBM)

Company Name Signature of Person Authorized to Sign

State of Arizona Department of Child Safety

Office of Procurement & Contracts

Exceptions to Scope of Work and Pricing

Article / Paragraph or Exhibit Reference

Proposed Changes / Alternate Language RFP Language (Copy and Paste from Solicitation)

Scope of Work

Pricing Document

State of Arizona Department of Child Safety

Office of Procurement & Contracts

Exceptions to Contract Terms & Conditions

Article/ Paragraph or

Exhibit Reference

Proposed Changes / Alternate Language RFP Language (Copy and Paste from

Solicitation)

Special Terms & Conditions

6.2 Contractor Insurance

1. MINIMUM SCOPE AND LIMITS OF

INSURANCE: Contractor shall provide coverage with limits of liability not less than those stated below:

Commercial General Liability (CGL) – Occurrence Form

Policy shall include third party bodily injury, third party property damage, and broad form contractual liability coverage

1. MINIMUM SCOPE AND LIMITS OF

INSURANCE: Contractor shall provide coverage with limits of liability not less than those stated below:

Commercial General Liability (CGL) – Occurrence Form

Policy shall include bodily injury, property damage, and broad form contractual liability coverage.

6.2 Contractor Insurance

2. BUSINESS AUTOMOBILE

LIABILITY

Third party bodily injury and third-party Property Damage for any Contractor owned, hired, and/or non-owned vehicles used in the performance of this Contract.

2. BUSINESS AUTOMOBILE

LIABILITY

Bodily Injury and Property Damage for any owned, hired, and/or non-owned vehicles used in the performance of this Contract.

6.2 Contractor Insurance

3. WORKER’S COMPENSATION

AND EMPLOYERS’ LIABILITY

Workers’ Compensation Statutory

Employers’ Liability

▪ Each Accident $ 1,000,000

▪ Disease – Each Employee $ 1,000,000

▪ Disease – Policy Limit $ 1,000,000

a. In respect of Worker’s compensation, policy shall contain a waiver of subrogation against the State of Arizona, its departments, agencies, boards, commissions, universities and its officers, officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor.

b. However, waiver of subrogation does not apply in instances of gross negligence on the part of

3. WORKER’S COMPENSATION AND

EMPLOYERS’ LIABILITY

Workers’ Compensation Statutory

Employers’ Liability

▪ Each Accident $ 1,000,000

▪ Disease – Each Employee $1,000,000

▪ Disease – Policy Limit $ 1,000,000

a. Policy shall contain a waiver of subrogation against the State of Arizona, its departments, agencies, boards, commissions, universities and its officers, officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor.

b. This requirement shall not apply to: Separately, EACH contractor or subcontractor…

State of Arizona Department of Child Safety

Office of Procurement & Contracts the customer, where gross negligence is defined to mean carelessness that is a reckless disregard for the safety of others and/or a failure to use the slightest degree of care.

c. This requirement shall not apply to: Separately EACH contractor or subcontractor…

Insurance

4. Technology Professional Errors & Omissions Insurance

▪ Each Claim $2,000,000

▪ Annual Aggregate $2,000,000

a. Such insurance shall cover any, and all actual or alleged breach of duty, errors, omissions, or negligent acts solely for acts or omissions committed by Contractor in the delivery of products, services, and/or licensed programs under this contract.

b. Reserved

4. Technology Errors & Omissions Insurance

▪ Each Claim $2,000,000

▪ Annual Aggregate $2,000,000

a. Such insurance shall cover any, and all errors, omissions, or negligent acts in the delivery of products, services, and/or licensed programs under this contract.

b. Coverage shall include copyright infringement, infringement of trade dress, domain name, title, or slogan.

Insurance

5. ADDITIONAL INSURANCE

REQUIREMENTS: The policies shall include, or be endorsed to include the following provisions:

a. The State of Arizona, its departments, agencies, boards, commissions, universities and its officers, officials, agents, and employees wherever additional insured status is required are included as additional insured on Commercial General Liability and Auto Liability.

Such additional insured shall be covered to the full agreed to limits of liability purchased by the Contractor, even if those limits of liability are more than those required by this Contract. As respects Professional Liability / Errors & Omissions Insurance, additional insured will apply in so far as the customer may be deemed

5. ADDITIONAL INSURANCE

REQUIREMENTS: The policies shall include, or be endorsed to include the following provisions:

a. The State of Arizona, its departments, agencies, boards, commissions, universities and its officers, officials, agents, and employees wherever additional insured status is required.

Such additional insured shall be covered to the full limits of liability purchased by the Contractor, even if those limits of liability are more than those required by this Contract.

b. The Contractor's insurance coverage shall be primary insurance with respect to all other available sources.

State of Arizona Department of Child Safety

Office of Procurement & Contracts liable for the acts or omissions committed by the Contractor in providing the professional services, and in which case and where applicable, the Contractor will pay the State of Arizona directly for their interests as additional insured.

b. Only with respect to liability arising out of this contract, the Contractor's Commercial General Liability and Auto Liability policies shall be endorsed to include State of Arizona as an additional insured, with severability of interests, and shall be primary and non-contributory.

coverage shall be primary insurance with respect to all other available sources.

Insurance

6. NOTICE OF CANCELLATION:

Should any of the above-described policies be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. Contractor will endeavor to provide State of Arizona with 30 days' prior written notice of cancellation.

Applicable to all insurance policies required within the Insurance Requirements of this Contract, Contractor’s insurance shall not be permitted to expire, be suspended, be canceled, or be materially changed for any reason without thirty (30) days prior written notice to the State of Arizona.

NOTICE OF CANCELLATION:

Applicable to all insurance policies required within the Insurance Requirements of this Contract, Contractor’s insurance shall not be permitted to expire, be suspended, be canceled, or be materially changed for any reason without thirty (30) days prior written notice to the State of Arizona.

6.2 Contractor Insurance

8. VERIFICATION OF COVERAGE: …

The State of Arizona reserves the right to review applicable insurance policies in the event the State asserts a potential claim under the policy required by this Contract with reasonable prior notice to Contractor. Review shall be conducted at a location of Contractor’s reasonable choice,

8. VERIFICATION OF COVERAGE:…

The State of Arizona reserves the right to require complete, certified copies of all insurance policies required by this Contract at any time. DO NOT SEND

CERTIFICATES OF INSURANCE TO THE

STATE OF ARIZONA'S RISK

MANAGEMENT SECTION.

State of Arizona Department of Child Safety

Office of Procurement & Contracts with disclosure subject to the protection of Contractor’s confidential or proprietary information under a confidentiality agreement acceptable to Contractor. to require complete, certified copies of all insurance policies required by this Contract at any time. DO

NOT SEND CERTIFICATES OF

INSURANCE TO THE STATE OF

ARIZONA'S RISK MANAGEMENT

SECTION.

6.3 (2) Basic Indemnific ation

2. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the State of Arizona, and its departments, agencies, boards, commissions, universities, and any jurisdiction or agency issuing permits for any work included in the project, and their respective directors, officers, officials, agents and employees (hereinafter referred to as "Indemnitee") from and against any and all third-party claims, actions, liabilities, costs, losses, or expenses, (including reasonable attorney's fees), (hereinafter collectively referred to as "Claims") arising out of actual or alleged bodily injury or personal injury of any person (including death) or loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of Contractor’s directors, officers, agents, employees, volunteers or subcontractors, provided, however, that the amount of Contractor’s total liability for damages for loss or damage to intangible property pursuant to its indemnification obligations herein shall not exceed fifty million dollars ($50 million). This indemnity includes any claim or amount arising or recovered under the Workers' Compensation Law or arising out of the failure of Contractor to conform to any federal, state, or local law, statute, ordinance, rule, regulation or court decree. It is the specific intention of the parties that the Indemnitee shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by Contractor from and against any and all Claims. It is agreed that

2 To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the State of Arizona, and its departments, agencies, boards, commissions, universities, and any jurisdiction or agency issuing permits for any work included in the project, and their respective directors, officers, officials, agents and employees (hereinafter referred to as "Indemnitee") from and against any and all claims, actions, liabilities, costs, losses, or expenses, (including reasonable attorney's fees), (hereinafter collectively referred to as "Claims") arising out of actual or alleged bodily injury or personal injury of any person (including death) or loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of Contractor's directors, officers, agents, employees volunteers or subcontractors.

This indemnity includes any claim or amount arising or recovered under the Workers' Compensation Law or arising out of the failure of Contractor to conform to any federal, state, or local law, statute, ordinance, rule, regulation or court decree.

It is the specific intention of the parties that the Indemnitee shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by Contractor from and against any and all Claims. It is agreed that Contractor will be responsible for primary loss investigation, defense, and judgment costs where this indemnification is applicable. This indemnification will survive the termination of the above listed contract with the Contractor.

State of Arizona Department of Child Safety

Office of Procurement & Contracts

Contractor will be responsible for primary loss investigation, defense, and judgment costs where this indemnification is applicable where such costs have been actually paid to the third-party claimant after final award by a court or inclusion in a settlement approved by Contractor.

Contractor’s obligations are subject to State’s prompt notice of any such Claims, supplying information reasonably requested by Contractor;

and tendering to Contractor the right to control, and reasonably cooperating in, the defense and settlement, including mitigation efforts. This indemnification will survive the termination of the above listed contract with the Contractor.

7.2 Warranty of Services

The Contractor warrants that all services provided under this contract shall conform to the requirements stated herein and any amendments hereto. The Department’s acceptance of services provided by the Contractor shall not relieve the Contractor from its obligations under this warranty. In addition to its other remedies, the Department Procurement Officer may, at the Contractor’s expense, require prompt correction of any services failing to meet the Contractor’s warranty herein. Services corrected by the Contractor shall be subject to all the provisions of this contract in the manner and to the same extent as the services originally furnished. Subject to the agreed upon Service Levels, Services are provided on an “As-Is” basis.

The Contractor warrants that all services provided under this contract shall conform to the requirements stated herein and any amendments hereto. The Department’s acceptance of services provided by the Contractor shall not relieve the Contractor from its obligations under this warranty. In addition to its other remedies, the Department Procurement Officer may, at the Contractor’s expense, require prompt correction of any services failing to meet the Contractor’s warranty herein. Services corrected by the Contractor shall be subject to all the provisions of this contract in the manner and to the same extent as the services originally furnished.

11.7 (1 and

2) First Party Liability Limitation

1. LIMIT. Subject to the provisos that follow below and unless stated otherwise in the Special Terms and Conditions, State’s and Contractor’s respective first party liability arising from or related to the Contract is limited to the following: (a) on a per claim basis, to the greater of $1,000,000 (one million dollars) or 3 (three) times the purchase price of the specific Materials or Services giving rise to the claim, and (b), on an overall basis for all claims arising during the life of the Contract, to the total purchase price for all Orders

1. LIMIT. Subject to the provisos that follow below and unless stated otherwise in the Special Terms and Conditions, State’s and Contractor’s respective first party liability arising from or related to the Contract is limited to the greater of $1,000,000 (one million dollars) or 3 (three) times the purchase price of the specific Materials or Services giving rise to the claim.

2. PROVISOS. This paragraph 11.7 limits liability for first party direct, indirect, incidental, special, punitive, and consequential damages relating to the Work regardless of the legal theory under

State of Arizona Department of Child Safety

Office of Procurement & Contracts under the Contract’s initial term (years 1-3).

2. PROVISOS. This paragraph 11.7 limits liability for first party direct damages.

Neither party shall be liable for indirect, incidental, special, punitive, and consequential damages relating to the Work regardless of the legal theory under which the liability is asserted.

This paragraph 11.7 does not limit liability arising from any:

(a) Indemnified Claim against which Contractor has indemnified State Indemnitees under paragraph 6.3;

(b) claim against which Contractor has indemnified State Indemnitees under paragraph 6.4; or

(c) provision of the Contract calling for liquidated damages or specifying amounts or percentages as being at-risk or subject to deduction for performance deficiencies.

3.PURCHASE PRICE DETERMINATION.

If the Contract is for a single-agency and a single Order (or if no Order applies), then “purchase price” in Subparagraph 14.7.1 above means the aggregate Contract price current at the time of Contract expiration or earlier termination, including all change orders or other forms of Contract Amendment having an effect on the aggregate price through that date. In all other cases, “Purchase Price” above means the total price of the Order for the specific equipment, software, or services giving rise to the a claim. The specific maximum purchase price for each Service is as set forth in the DCS IT Maintenance and Operations Services BPM004453 Master Pricing Sheet, as amended by subsequent change order(s). and therefore a separate limit will apply to each Order.

which the liability is asserted. This paragraph 11.7 does not limit liability arising from any:

(a) Indemnified Claim against which

Contractor has indemnified State Indemnitees under paragraph 6.3;

(b) claim against which Contractor has indemnified State Indemnitees under paragraph 6.4; or

(c) provision of the Contract calling for liquidated damages or specifying amounts or percentages as being at-risk or subject to deduction for performance deficiencies.

3.PURCHASE PRICE DETERMINATION.

If the Contract is for a single-agency and a single Order (or if no Order applies), then “purchase price” in Subparagraph 14.7.1 above means the aggregate Contract price current at the time of Contract expiration or earlier termination, including all change orders or other forms of Contract Amendment having an effect on the aggregate price through that date. In all other cases, “purchase price” above means the total price of the Order for the specific equipment, software, or services giving rise to the claim, and therefore a separate limit will apply to each Order.

Pricing Adjustmen t

IBM Request that RFP Pricing Section 10.2 takes precedence over Special Terms Section 4.8 for this contract. IBM proposed a minor clarification in Section 10.2.

Section 10.2 of the Pricing Section

Section 10.2 of the Pricing Section

PRICE INCREASES. AZ DCS may review a fully documented request for a price increase.

The requested increase shall be in writing and be based upon a cost increase to the contractor that was clearly unpredictable at the time of

State of Arizona Department of Child Safety

Office of Procurement & Contracts

PRICE INCREASES. AZ DCS may review a fully documented request for a price increase. The requested increase shall be in writing and be based upon a cost increase to the contractor that was clearly unpredictable at the time of the offer and is directly correlated to the price of the services concerned. Contractor must provide conclusive evidence of a need for any price increases such as being substantiated by the Producer Price Index, Consumer Price Index, or similar pricing guide.

1. Initial Contract prices shall be honored for 1 year after award of Contract.

2. All written requests for price adjustments made by the contractor shall be initiated forty-five (45) days before the contract is due to be extended for start of another contract year (45 days before contract year end date).

3. All price adjustments will be implemented by a formal contract change order. AZ DCS shall determine whether the requested price increase or an alternate option is in the best interest of the State.

the offer and is directly correlated to the price of the services concerned. Contractor must provide conclusive evidence of a need for any price increases such as being substantiated by the Producer Price Index, Consumer Price Index, or similar pricing guide.

1. Initial Contract prices shall be honored for 1 year after award of Contract.

2. All written requests for price adjustments made by the contractor shall be initiated forty-five (45) days before the contract is due to be extended for another year (45 days before contract end date).

3. All price adjustments will be implemented by a formal contract change order. AZ DCS shall determine whether the requested price increase or an alternate option is in the best interest of the State.

Uniform Terms & Conditions