7301223158Template.pdf

Corning Tower, Empire State Plaza, Albany, NY 12242 | https://ogs.ny.gov/procurement | customer.services@ogs.ny.gov | 518-474-6717

HBITS Second Amendment Page 1 of 7

SECOND AMENDMENT TO CONTRACT NUMBER «CONTRACT_NUMBER»

«CONTRACTOR_NAME» GROUP 73012 AWARD 23158

Hourly-Based Information Technology Services (HBITS)

(Statewide)

THIS SECOND AMENDMENT, (the “Second Amendment”) 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, and «CONTRACTOR_NAME» (hereinafter “Contractor”), with its principal place of business at «CONTRACTOR_STREET_ADDRESS», «CITY_STATE_ZIP_CODE». The foregoing are collectively referred to as the “Parties.”

W I T N E S S E T H:

WHEREAS, OGS entered into a Centralized Contract for the acquisition of Hourly-Based Information Technology Services (hereinafter referred to as the “Contract” or “Contract No. «CONTRACT_NUMBER»” with «CONTRACTOR_NAME» on July 01, 2019; and

WHEREAS, Contract No. «CONTRACT_NUMBER» provided for an initial term from July 01, 2019, through and including June 30, 2024, and an option for an extension of the initial term for up to a five (5) year period was provided for in Section

2.1.2 Contract Term and Extensions; Extensions.

WHEREAS, the Contract was amended pursuant to that certain First Contract Amendment to Contract #_________ dated ___________ (the “First Amendment”).

WHEREAS, the Parties now wish to amend the Contract to extend the Contract term through and including June 30, 2029, pursuant to Contract Section 2.1.2 Contract Term and Extensions; Extensions, and to otherwise amend the Contract as set forth below.

NOW THEREFORE, in consideration of the mutual covenants herein contained, the Parties do hereby agree as follows:

1. TERM

Pursuant to Contract Section 2.1.2 Contract Term and Extensions, Extensions, the term of the Contract is hereby extended for five (5) years through and including June 30, 2029, or until a new contract for Hourly-Based Information Technology Services (Statewide) is awarded, whichever occurs first.

2. NYS COMPTROLLER APPROVAL

The Contract is amended to add the following new Section, 2.30 NYS Comptroller Approval, to read as follows:

2.30 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 this Contract has been approved by the Office of the New York State Comptroller (“OSC”).

Purchase orders or other procurement transactions under this Contract(s) may also be subject to OSC approval.

3. DEFINITIONS

Section 1.5 Definitions is amended to delete the definition for “NYS Holidays” in its entirety and replace it with the following new definition:

GROUP 73012 Award 23158 – Hourly-Based Information Technology Services (Statewide)

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1.5 DEFINITIONS

“NYS Holidays” refers to the legal holidays for State employees in the classified service of the executive branch, as more particularly specified on the website of the NYS Department of Civil Service. This includes the following:

New Year’s Day; Dr. Martin Luther King, Jr. Day; Washington’s Birthday (observed); Memorial Day; Juneteenth;

Independence Day; Labor Day; Columbus Day; Veterans’ Day; Thanksgiving Day; and Christmas Day.

4. CONFLICT OF TERMS

Section 1.7 Conflict of Terms of the Contract is deleted in its entirety and replaced with the following new Section 1.7 Conflict of Terms, to read as follows:

1.7 CONFLICT OF TERMS

Conflicts among the documents shall be resolved in the following order of precedence:

1. Appendix A, Standard Clauses for New York State Contracts (June 2023);

2. Appendix C, Federal Funding Agency Mandatory Terms and Conditions

3. This Second Amendment;

4. The First Amendment;

5. The Contract;

6. Appendix B, General Specifications (April 2016); and

7. All other appendices and attachments to this Contract, including those added by a Contract

Amendment;

5. 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

Section 2.15(III)(C) Form EEO 101 – Workforce Utilization Reporting Form (Commodities and Services) (“Form EEO-101- Commodities and Services”) of the Contract is deleted in its entirety and replaced with the following new Section 2.15(III)(C) NYS Contract System Workforce Utilization Reporting Module (Commodities & Services), to read as follows:

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 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.

6. PARTICIPATION OPPORTUNITIES FOR NEW YORK STATE CERTIFIED SERVICE-DISABLED VETERAN OWNED

BUSINESSES,

https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fny.newnycontracts.com%2F&data=04%7C01%7CDavid.Gambacorta%40ogs.ny.gov%7C6842b8374b0e47eade2d08d9fe141578%7Cf46cb8ea79004d108ceb80e8c1c81ee7%7C0%7C0%7C637820184476044631%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=TauJtfSwhtbtaeviFN7gaJi1Uh0w5AeaRQSrxJeT3Mc%3D&reserved=0

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Section 2.16 Participation Opportunities For New York State Certified Service-disabled Veteran Owned Businesses, of the Contract is deleted in its entirety and replaced with the following new Section 2.16 Participation Opportunities For New York State Certified Service-Disabled Veteran Owned Businesses, to read as follows:

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 6.0% 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.

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:

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(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 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 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 hbits.contractors@ogs.ny.gov

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 mailto:hbits.contractors@ogs.ny.gov

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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: hbits.contractors@ogs.ny.gov

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/

7. CONTRACT DOCUMENTS; ELECTRONIC FORMAT

The Contract is amended to add the following new Section, 1.8 Contract Documents; Electronic Format, to read as follows:

1.8 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.

8. APPENDIX A

Appendix A Standard Clauses for New York State Contracts, included in the Contract, is deleted in its entirety and replaced with the Appendix A dated June 2023, attached hereto, which is expressly made a part of this Contract Amendment as fully as if set forth at length therein. All references in the Contract to Appendix A shall be deemed to reference Appendix A, Standard Clauses for New York State Contracts (June 2023).

9. APPENDIX C

The Contract is amended to add Appendix C – Federal Funding Agency Mandatory Terms and Conditions dated October 2023, attached hereto, which is expressly made a part of this Contract Amendment as fully as if set forth at length herein.

10. SEVERABILITY

In the event that any one or more of the provisions of this Second Amendment shall for any reason be declared unenforceable under the laws or regulations in force, such provision will not have any effect on the validity of the remainder of this Second Amendment, which shall then be construed as if such unenforceable provision had never been written or was never contained in this Second Amendment.

11. Except as herein modified, all other terms of Contract «CONTRACT_NUMBER» shall remain in full force and effect.

mailto:hbits.contractors@ogs.ny.gov https://ogs.ny.gov/Veterans/

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IN WITNESS WHEREOF, the Parties have executed this Second Amendment as of the date last written below. The Parties further hereby certify that original copies of this executed and approved signature page will be affixed, upon final approval, to exact copies of this Second Amendment being executed simultaneously herewith. The acknowledgment must be fully and properly executed by an authorized person. By signing you certify your express authority to sign on behalf of yourself, your company, or other entity and full knowledge and acceptance of this Second Amendment, Appendix A Standard Clauses For New York State Contracts, (June 2023) (Appendix B General Specifications (April 2016), and State Finance Law §139-j and §139-k (Procurement Lobbying), and that all information provided is complete, true and accurate. By signing, Contractor affirms that it understands and agrees to comply with the OGS procedures relative to permissible contacts as required by State Finance Law §139-j (3) and §139-j (6) (b).

NOTICE: This Second Amendment becomes effective upon OSC approval. OGS will then post a notification to its website in the form of a Contract Award Notification Update.

CONTRACTOR

THE PEOPLE OF THE STATE OF NEW YORK,

ACTING BY AND THROUGH THE COMMISSIONER

OF GENERAL SERVICES

Signature: Signature:

Printed Name: Printed Name:

Title: Title:

Date: Date:

Company Name: Office of General Services

Federal ID:

NYS Vendor ID:

NEW YORK STATE OFFICE OF THE STATE

COMPTROLLER

HBITS Second Amendment Page 7 of 7

INDIVIDUAL, CORPORATION, PARTNERSHIP, OR LLC ACKNOWLEDGMENT

STATE OF________________________}

: ss:

COUNTY OF______________________}

On the ________ day of ______________________ in the year 20_____ , before me personally appeared

_____________________________________________, known to me to be the person who executed the foregoing instrument, who, being duly sworn by me did depose and say that _he maintains an office at and further that:

[Check One] ( If an individual): _he executed the foregoing instrument in his/her name and on his/her own behalf.

( 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 _______________________________________________________________ of

______________________________________, 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.

( 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.

Signature of Notary Public

Notary Public Registration No.________________________________________State_________________

HBITS First Amendment Page 1 of 3

STATE OF NEW YORK

OFFICE OF GENERAL SERVICES

FIRST CONTRACT AMENDMENT TO CONTRACT # ___________

FOR HOURLY-BASED INFORMATION TECHNOLOGY SERVICES

WITH (COMPANY NAME)

THIS FIRST CONTRACT AMENDMENT (“First Amendment”) is made to Contract No.

_________ (“Contract”) by and between the People of the State of New York, acting by and through the Commissioner of General Services (“State” or “OGS”), with offices at 36th Floor, Corning Tower, The Governor Nelson A. Rockefeller Empire State Plaza, Albany, New York, 12242 and ___________ (“Contractor”), with offices at ____________________. The State and the Contractor are collectively referred to as the “Parties.”

WHEREAS, the Parties entered into the Contract, effective July 1, 2019, for Hourly-Based Information Technology Services; and

WHEREAS, the State seeks to amend the Contract as set forth below; and

WHEREAS, the Contractor agrees to such amendments to the Contract.

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth in this First Amendment, the Parties hereby agree as follows:

1. Appendix A, Standard Clauses for New York State Contracts, dated January 2014, attached to the Contract, is hereby deleted in its entirety and replaced with the attached revised Appendix A, Standard Clauses for New York State Contracts, dated October 2019.

2. Attachment 7, HBITS Process, attached to the Contract, dated July 1, 2019 is hereby deleted in its entirety and replaced with the attached revised Attachment 7, HBITS Process, dated March 11, 2021.

3. Section 2.26, Contract Amendment Process, is hereby amended by adding a new closing paragraph with the following language from Section 4.5, NYS Reserved Rights, of Request for Proposals #23158 for Hourly-Based Information Technology Services:

“Notwithstanding the foregoing, New York State reserves the right, in its sole discretion, to unilaterally make revisions, changes and/or updates to any templates, Appendices (excluding Appendices A and B) and/or Attachments to the Contract without processing a formal amendment and/or modification.”

4. In the event that any one or more of the provisions of this First Amendment shall for any reason be declared unenforceable under the laws or regulations in force, such provision will not have any effect on the validity of the remainder of this First Amendment, which shall then be construed as if such unenforceable provision had never been written or was never contained in this First Amendment.

5. Except as herein modified, all other terms and conditions of the Contract shall remain in full force and effect.

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IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the date last written below. The Parties further hereby certify that original copies of this executed and approved signature page will be affixed, upon final approval, to exact copies of this First Amendment being executed simultaneously herewith. The acknowledgment must be fully and properly executed by an authorized person. By signing you certify your express authority to sign on behalf of yourself, your company, or other entity and full knowledge and acceptance of this First Amendment, Appendix A (Standard Clauses For New York State Contracts), Appendix B (General Specifications), and State Finance Law §139-j and §139-k (Procurement Lobbying), and that all information provided is complete, true and accurate. By signing, Contractor affirms that it understands and agrees to comply with the procedures relative to permissible contacts as required by State Finance Law §139-j (3) and §139-j (6) (b).

CONTRACTOR NAME

Signature: __________________________

Printed Name: _______________________

Title: ______________________________

Federal ID: _________________________

NYS Vendor ID: ______________________

Date: ______________________________

THE STATE OF NEW YORK

Signature: __________________________

Printed Name: _______________________

Title: ______________________________

Date: ______________________________

HBITS First Amendment Page 3 of 3

INDIVIDUAL, CORPORATION, PARTNERSHIP, OR LLC ACKNOWLEDGMENT

STATE OF }

: SS.:

COUNTY OF }

On the ____ day of ___________________ in the year 20___, before me personally appeared

_______________________________________ , known to me to be the person who executed the foregoing instrument, who, being duly sworn by me did depose and say that _he maintains an office at ______________________________________, City/Town of

_________________________________ , County of _______________________________ , State of ______________________________ ; and further that:

[Check One] ( If an individual): _he executed the foregoing instrument in his/her name and on his/her own behalf.

( 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 ________________________________ of

___________________________________, 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.

( 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.

Signature of Notary Public

Registration No.__________________________________ State: ______________________

AGREEMENT FOR

HOURLY-BASED INFORMATION TECHNOLOGY SERVICES

BY AND BETWEEN

NEW YORK STATE

OFFICE OF GENERAL SERVICES

AND

CONTRACT NUMBER PH_____________

Contract #PH (Vendor Name)

July 2019 Page 2 of 27

TABLE OF CONTENTS

1 INTRODUCTION

1.1 Overview

1.2 HBITS Process Overview

1.3 Scope

1.4 Estimated Quantities

1.5 Definitions

1.6 Appendices and Attachments

1.7 Conflict of Terms

2 TERMS AND CONDITIONS

2.1 Contract Term and Extensions

2.2 Short Term Extension

2.3 Contract Survival

2.4 Pricing

2.5 CPI Rate Adjustments

2.5.1 Calculation of CPI Adjustment

2.5.2 Agreement of CPI Adjustment

2.5.3 CPI Adjustment for Selected Candidate Placements Already in Effect

2.5.4 CPI Adjustment to Markup

2.5.5 Government Mandated Program Rate Adjustments

2.6 Invoicing and Payment

2.6.1 Method of Payment for Executive Agency Authorized Users

2.6.2 Method of Payment for Non-Executive Agency Authorized Users

2.6.3 Additional Payment Provision

2.7 Services Warranty

2.8 Subcontractors

2.9 Contract Administration

2.9.1 Contract Administrator

2.9.2 Toll-Free Number

2.9.3 Webcasting

2.9.4 Billing Contact

2.9.5 Emergency Contact

2.10 Insurance

2.11 NYS Vendor Responsibility

2.12 NYS Tax Law Section 5-a

2.13 NYS Financial System (SFS)

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2.14 Consultant Disclosure

2.15 CONTRACTOR REQUIREMENTS AND PROCEDURES FOR PARTICIPATION BY NEW YORK STATE

CERTIFIED MINORITY- AND WOMEN-OWNED BUSINESS ENTERPRISES AND EQUAL EMPLOYMENT

OPPORTUNITIES FOR MINORITY GROUP MEMBERS AND WOMEN

2.16 Participation Opportunities For New York State Certified Service-Disabled Veteran Owned Businesses .. 21

2.17 Non-State Agencies Participation in Centralized Contracts

2.18 Extension of Use

2.19 New Accounts

2.20 Centralized Contract Modifications

2.21 Drug and Alcohol Use Prohibited

2.22 Traffic Infractions

2.23 Information Security Breach and Notification Act

2.24 Work in the United States

2.25 Minimum Utilization

2.26 Contract Amendment Process

2.27 Performance and Bid Bonds

2.28 Non-Compete Agreements

2.29 Audit of Contractor

3 GENERAL PROVISIONS

3.1 Notices

3.2 Captions

3.3 Severability

3.4 Counterparts

3.5 Entire Agreement

CONTRACT SIGNATURE PAGE

APPENDICES

Appendix A – Standard Clauses for New York State Contracts (January 2014)

Appendix B – General Specifications (April 2016)

ATTACHMENTS

Attachment 1 – Pricing Schedules Attachment 2 – Contractor Information Attachment 3 – Insurance Requirements Attachment 4 – Job Titles, Skill Levels, Regions Attachment 5 – HBITS Contract (How to Use) Attachment 6 – HBITS Contract (Forms) Attachment 7 – HBITS Process

July 2019 Page 4 of 27

STATE OF NEW YORK

OFFICE OF GENERAL SERVICES

AGREEMENT # PH_________

CENTRALIZED CONTRACT FOR THE ACQUISITION OF

HOURLY-BASED INFORMATION TECHNOLOGY SERVICES

THIS AGREEMENT (hereinafter the “Contract” or the “Agreement”) is made this ____ day of _________, 2019, by and between the People of the State of New York, acting by and through the Commissioner of the Office of General Services (OGS), whose office is on the 36th Floor, Corning Tower, Governor Nelson A. Rockefeller Empire State Plaza, Albany, New York 12242 (hereinafter referred to as the “State” or “OGS”) and ________________, having its principal place of business at ________________ (hereinafter referred to as the “Contractor”). OGS and the Contractor are collectively referred to as the “Parties.”

WHEREAS, OGS is statutorily authorized to enter into centralized contracts for services for use by New York State agencies, departments, public authorities, political subdivisions and any other entities authorized by statute to utilize its centralized contracts (hereinafter “Authorized Users”); and

WHEREAS, OGS has identified a need by New York State agencies and other Authorized Users for Hourly-Based Information Technology Services (“HBITS”), to provide information technology staff necessary to support their ever-expanding information technology needs through staff augmentation, as further described herein; and

WHEREAS, OGS conducted a competitive procurement to identify the bidder(s) which could provide Hourly-Based Information Technology Services for the best value, referred to as RFP #23158 (hereinafter the “RFP” or the “Solicitation”), which was advertised on December 24, 2018 in the New York State Contract Reporter, as required by New York State Economic Development Law; and

WHEREAS, awards were to be made to responsible and responsive bidders that obtained the thirty highest best-value scores, in accordance with the method of award set forth in the RFP; and

WHEREAS, the centralized contracts awarded pursuant to the RFP shall replace the current centralized contracts under Award Number 22439; and

WHEREAS, the State has determined that the Contractor submitted a responsive proposal, received one of the thirty highest best-value scores, and is a responsible vendor, and, therefore, the Contractor has been awarded a contract to provide Hourly-Based Information Technology Services; and

WHEREAS, the Contractor is willing to provide the services set forth herein under the terms and conditions contained herein.

NOW THEREFORE, in consideration of the terms hereinafter mentioned and also the mutual covenants and obligations moving to each party hereto from the other, the Parties hereby agree as follows:

July 2019 Page 5 of 27

1 INTRODUCTION

1.1 Overview

This Contract outlines the procedures and methods to be used by Authorized Users, OGS, and Contractor to provide

Authorized Users with a method for procuring HBITS.

1.2 HBITS Process Overview

A breakdown of responsibilities between the Authorized User, the OGS HBITS Team and the Contractor is described in

Attachment 7 – HBITS Process. The State awarded thirty (30) Contracts to responsive and responsible Contractors pursuant to the RFP. All 30 awarded Contractors, including Contractor, are designated as Active Contractors during year one (1) of the Contract. At the end of year one (1), and at the end of all Contract years, and any renewal years, the

Contractors will be evaluated to determine their designation as either an Active or Inactive Contractor for the upcoming

Contract year. The Annual Contractor Evaluation and the Active/Inactive concepts are further explained in Attachment 7 –

HBITS Process. Forms for use in connection with this Contract are attached hereto as Attachment 6 – HBITS Contract

(Forms).

1.3 Scope

Hourly Based IT Services required by Authorized Users to support their ever-expanding information technology needs can be obtained through the procedures and methods outlined under this Contract and in Attachment 5 – HBITS Contract (How to Use). Under this Contract, Authorized Users will perform a preliminary Candidate technical evaluation, interview, perform a post interview evaluation and hire IT staff based on their Position requirements.

The Contractor has been awarded a statewide centralized contract to provide Hourly Based IT Services across three (3)

Regions in New York State. Region 1 includes all Counties in New York State that are not included in Region 2 or Region

3. Region 2 includes Dutchess, Orange and Putnam Counties. Region 3 includes Nassau, Rockland, Suffolk, Westchester, Bronx, Kings, New York, Queens and Richmond Counties.

The Contractor’s rates are actual Wage Rates and include any actual Markup that Contractor may charge the State. This

Contract includes fixed rates rather than not-to-exceed rates.

There are IT Services expressly excluded from the scope of this Contract. In many instances, such services are available for purchase under other OGS Centralized Contracts. Examples include:

● Deliverable-based IT Services

● Project-based IT Services

● Web hosting

● Installation work which is considered Public Works is excluded from purchase under the scope of this Contract o Historically, the New York State Bureau of Public Works has maintained that installation, maintenance and repair of equipment attached to any wall, ceiling or floor or affixed by hard wiring or plumbing is public work. In contrast, installation of a piece of equipment which is portable, or a “plug-in” free-standing unit would not be considered public work. This Contract does not authorize installation where the equipment becomes a permanent part of the building structure or is otherwise incorporated into the fabric of the building (i.e. installation on a wall, ceiling or floor in a fixed location, or affixed by hard-wiring or plumbing).

See Appendix B – General Specifications (April 2016), Clause 7 Prevailing Wage Rates - Public Works and Building Services Contracts. For questions about whether a proposed work constitutes public work, please contact the New York State Department of Labor’s Bureau of Public Work District Office in a specific area. A listing of district offices and contact information is available at https://www.labor.ny.gov/workerprotection/publicwork/PWContactUs.shtm.

● Authorized Users may require Candidates to attend standard, statewide or agency-wide mandatory training as required by New York State or the Authorized User. In such cases, the Authorized User is responsible for payment of the Candidate’s billable hours for the time spent attending such standard, statewide or agency-wide mandatory training. The Authorized User shall not be responsible for any billable hours or reimbursement for any https://www.labor.ny.gov/workerprotection/publicwork/PWContactUs.shtm

July 2019 Page 6 of 27 costs related to any other types of training, whether job-related or not. In no case shall the Authorized User pay for training to provide Candidates with the skills originally specified by the Authorized User in the Form 1.

1.4 Estimated Quantities

This Contract is an Indefinite Delivery, Indefinite Quantity (IDIQ) Contract. Numerous factors could cause the actual volume of services purchased under this Contract to vary substantially from any estimates in the Solicitation. Such factors include, but are not limited to, the following:

• This Contract is a nonexclusive contract;

• There is no guarantee of volume to be purchased; and

• There is no guarantee that demand will continue in any manner consistent with previous purchases.

The Contractor must furnish all quantities of services ordered at the Contract rates.

The Contractor acknowledges the foregoing and agrees that actual good faith purchasing volumes during the term of this

Contract could vary substantially from the estimates provided in the Solicitation.

1.5 Definitions

Capitalized terms used in this Contract shall be defined in accordance with Appendix B – General Specifications (April

2016), Clause 2 Definitions, or as defined below or otherwise herein:

“Active Contractor” shall mean a Contractor who is eligible to receive all new Form 1s posted by the OGS HBITS Team for a particular Contract year.

“Administrative Fee” shall mean the quarterly fee payable to the State in the amount of 0.75% for all sales (including sales to both Executive and Non-Executive Agencies) under this Contract. Costs associated with travel or any other authorized expenses that are billed to the State are excluded from the Administrative Fee.

“Annual Contractor Evaluation” or “Annual Evaluation” shall mean the evaluation of Contractors on the performance of their contractual duties done by the OGS HBITS Team on an annual basis.

“Business Day” shall mean Monday through Friday from 8:00 AM – 5:00 PM EST, excluding NYS Holidays and federal holidays.

“Candidate” shall mean a person proposed by a Contractor in response to a request from an Authorized User, prior to selection by an Authorized User.

“Contractor” shall mean the holder of the Contract and the entity that is wholly and solely responsible for the performance of the services provided under the Contract from both its own employees, subcontractors and independent contractors.

Contractor may be referred to as “Bidder” for terms relating to time periods prior to contract award.

“EEO” shall mean Equal Employment Opportunity.

“Engagement” shall mean the period of time that a Selected Candidate works for an Authorized User.

“EST” shall mean prevailing Eastern Standard Time.

“Executive Agency” or “Executive Agencies” shall mean all state departments, offices or institutions but, for the purposes of this Contract, excludes the State University of New York, NYS Office of the State Comptroller, New York State Education

Department, New York State Teachers Retirement System, New York State Office of the Attorney General, the City

University of New York and the New York State Insurance Fund. Furthermore, such term shall not include the legislature and the judiciary. For the sake of clarity, the term “Executive Agency” does not include any public benefit corporation, public authority, school district, or local government entity.

“Government” or “Governmental Entity” shall mean an entity at the federal, state, county, city or provincial level.

“HBITS” shall mean Hourly-Based Information Technology Services.

“Hourly Bill Rate” shall mean the hourly rate that the Contractor will receive for services provided to the Authorized User by the Selected Candidate.

July 2019 Page 7 of 27

“Hourly Wage Rate” shall mean the minimum hourly wage rate which must be paid to the Selected Candidate. For example, Hourly Wage Rate x Mark Up = Hourly Bill Rate.

“Job Title” shall mean the Job Titles set forth in this Contract. A listing of each Job Title and corresponding description is included in Attachment 4 - Job Titles, Skill Levels, Regions.

“Mandatory Qualifications” shall mean the Job Title and corresponding description along with the Skill Level and corresponding number of months’ required experience that the Authorized User selects for their requested Position(s).

“Markup” shall mean all costs Contractor will incur beyond the Hourly Wage Rate paid to a Candidate. This may include, but is not limited, to statutory requirements (i.e.: FICA, FUTA, SUTA, Worker’s Comp, Living Wage, etc.), overhead, recruiting costs, training, visa sponsorship, and profit.

“May” denotes the permissive in a Contract clause or specification. Also see “Will.”

“Monthly Sales Report” shall mean a Report that shall be submitted on a monthly basis that includes sales to both Executive and Non-Executive Authorized Users only.

“MWBE” shall refer to a business certified with NYS Empire State Development (“ESD”) as a Minority- and/or Women-owned Business Enterprise.

“Must” denotes the imperative in a Contract clause or specification. Also see “Shall.”

“Non-Executive Agency” shall mean, for the purposes of this Contract, the State University of New York, NYS Office of the State Comptroller, New York State Education Department, New York State Teachers Retirement System, New York

State Office of the Attorney General, the City University of New York and the New York State Insurance Fund. Furthermore, such term shall include the legislature, the judiciary and any public benefit corporation, public authority, school districts or local Governmental Entity.

“NYS Holidays” shall mean the legal holidays for State employees in the classified service of the executive branch, as more particularly specified on the website of the NYS Department of Civil Service at https://www.cs.ny.gov/attendance_leave/2018_legal_holidays.cfm.

“NYS Vendor ID” shall mean the ten-character identifier issued by New York State when a vendor is registered on the

Vendor File.

“OGS HBITS Team” shall mean Office of General Services Hourly Based Information Technology Services Team.

“OGS Procurement Services” shall mean a business unit of OGS responsible for establishing Centralized Contracts.

“Quarterly Sales Report” shall mean a Report that shall be submitted on a quarterly basis that includes sales to both Executive and Non-Executive Authorized Users as well as SBE, MWBE & SDVOB subcontracting usage.

“Requested Qualifications” shall mean the additional qualifications the Authorized User defines for their requested

Position(s).

“SBE” shall mean a Small Business Enterprise. A “New York State Small Business” is defined as a company that is a resident to New York State, independently owned and operated, with one-hundred (100) or fewer employees, and not dominant in its field. See State Finance Law § 160(8) “small business concern” or “small business”.

“SDVOB” shall mean a NYS-certified Service-Disabled Veteran-Owned Business.

“Selected Candidate” shall mean the Candidate that has been selected by an Authorized User to perform work.

“Shall” denotes the imperative in a Contract clause or specification. Also see “Must.”

“Skill Level” shall mean the Skill Levels set forth in this Contract. A listing of each Skill Level and corresponding number of months’ required experience is included in Attachment 4 - Job Titles, Skill Levels, Regions.

“Subcontractor” shall mean any entity providing services to the Contractor under a Contract.

“Training” shall mean in-person, on-line or other educational tools

“Inactive Contractor” shall mean a Contractor who is not eligible to receive any new Form 1s posted by the OGS HBITS Team for a particular Contract year.

https://www.cs.ny.gov/attendance_leave/2018_legal_holidays.cfm

July 2019 Page 8 of 27

“Will” denotes the permissive in a Contract clause or specification. Also see “May.”

1.6 Appendices and Attachments

The following Appendices and Attachments, attached hereto, are hereby expressly made a part of this Contract as fully as if set forth at length herein.

Appendix A – Standard Clauses for New York State Contracts (January 2014) Appendix B – General Specifications (April 2016) Attachment 1 – Pricing Schedules Attachment 2 – Contractor Information Attachment 3 – Insurance Requirements Attachment 4 – Job Titles, Skill Levels, Regions Attachment 5 – HBITS Contract (How to Use) Attachment 6 – HBITS Contract (Forms) Attachment 7 – HBITS Process

1.7 Conflict of Terms

Conflicts among the documents shall be resolved in the following order of precedence:

1. Appendix A - Standard Clauses for New York State Contracts (January 2014);

2. This Contract;

3. Appendix B – General Specifications (April 2016);

4. Attachment 7 – HBITS Process.

5. Attachment 1 – Pricing Schedules.

6. Attachment 3 – Insurance Requirements.

7. Attachment 4 – Job Titles, Skill Levels, Regions.

8. Attachment 6 – HBITS Contract (Forms).

9. Attachment 5 – HBITS Contract (How to Use).

10. Attachment 2 – Contractor Information.

2 TERMS AND CONDITIONS

2.1 Contract Term and Extensions

1. Base Term. The Contract shall be in effect for a term of five (5) years. The Contract term shall commence after all necessary approvals and shall become effective upon mailing or electronic communication of the final executed documents to the Contractor (see Appendix B – General Specifications (April 2016), Clause 22 Contract

Creation/Execution). The Contract is expected to begin on or about July 1, 2019 and run until June 30, 2024. All

Contracts resulting from the Solicitation regardless of start date shall have a co-terminus end date, including any subsequent extensions.

2. Extensions. At the State’s option, a Contract may be extended with mutual consent of the parties for up to a five

(5) year period. Whether the optional extension is exercised is at the sole discretion of the State. Contractor reserves the right to decline a Contract extension offered under this section. Any Contract extension will be under the same terms and conditions, subject to any additional applicable statutory and policy requirements. Any extensions provided under this section shall apply in addition to any rights set forth in Appendix B – General

Specifications (April 2016), Clause 23 Contract Term – Extension.

3. City of New York only. The Contract term provided for in this section shall extend 6 months beyond its termination date only for Authorized Users whose contracts must be registered with the Office of the New York City Comptroller.

During the 6-month period the definition of Authorized User shall be deemed to refer only to Authorized Users whose contracts must be registered with the Office of the New York City Comptroller. This extension is in addition to any other extensions available under the Contract. The extension provided for in this paragraph shall be upon the then-existing terms and conditions; provided, however, during such extension an Authorized User, as defined

July 2019 Page 9 of 27 in this paragraph, may agree to amend such terms and conditions solely to comply with changes in statutory requirements (e.g. changes in minimum, prevailing or living wages, or regulated services).

2.2 Short Term Extension

This section shall apply in addition to any rights set forth in Appendix B – General Specifications (April 2016), Clause 23

Contract Term – Extension. In the event a replacement Contract has not been issued, any Contract let and awarded hereunder by the State may be extended unilaterally by the State for an additional period of up to three (3) months upon notice to the Contractor with the same terms and conditions as the original Contract and any approved modifications. With the concurrence of the Contractor, the extension may be for a period of up to six (6) months in lieu of three (3) months.

However, this extension automatically terminates should a replacement Contract be issued in the interim.

2.3 Contract Survival

Engagements (Form 1 Task Orders) that are sent to Contractor for response prior to the expiration of this Contract shall survive the expiration date based upon the Engagement length stated on the Form 1 only if the Selected Candidate’s actual start date occurs no later than 60 calendar days beyond the Contract expiration date. All Engagements without a start date within this parameter noted above shall be null and void.

2.4 Pricing

Pricing was collected pursuant to the Solicitation. For each Region, an Hourly Bill Rate was calculated by multiplying the

Hourly Wage Rate bid by Contractor for each Job Title and Skill Level by the…