Amendment 2 QA.docx

SAP

State of South Carolina

Invitation for Bid Amendment #2 Questions and answers Solicitation:

Date Issued:

Procurement Officer:

Phone:

E-Mail Address:

Mailing Address:

5400017924 5/16/2019

MICHAEL THOMAS, CPPO

(803) 896-0752 Michael.Thomas@admin.sc.gov Division of Technology 4430 Broad River Road Columbia SC 29210

DESCRIPTION: SolarWinds Software Licenses

USING GOVERNMENTAL UNIT: Department of Administration- Division of Technology Operations-Agency Procurement

SUBMIT YOUR OFFER ON-LINE AT THE FOLLOWING URL: http://www.procurement.sc.gov

SUBMIT OFFER BY (Opening Date/Time): 5/22/2019 11:00 AM, EST (See "Deadline For Submission Of Offer" provision)

QUESTIONS MUST BE RECEIVED BY: 5/15/2019 12 Noon, EST (See "Questions From Offerors" provision)

NUMBER OF COPIES TO BE SUBMITTED: See Section Page 3 of solicitation Initial here if NO redacted copy is necessary _______

CONFERENCE TYPE:

DATE & TIME:

(As appropriate, see "Conferences - Pre-Bid/Proposal" & "Site Visit" provisions)

LOCATION:

You must submit a signed copy of this form with Your Offer. By signing, You agree to be bound by the terms of the Solicitation. You agree to hold Your Offer open for a minimum of one-hundred twenty (120) calendar days after the Opening Date. (See "Signing Your Offer" provision.)

NAME OF OFFEROR

(full legal name of business submitting the offer) Any award issued will be issued to, and the contract will be formed with, the entity identified as the Offeror. The entity named as the offeror must be a single and distinct legal entity. Do not use the name of a branch office or a division of a larger entity if the branch or division is not a separate legal entity, i.e., a separate corporation, partnership, sole proprietorship, etc.

AUTHORIZED SIGNATURE

(Person must be authorized to submit binding offer to contract on behalf of Offeror.)

DATE SIGNED

TITLE

(business title of person signing above)

STATE VENDOR NO.

(Register to Obtain S.C. Vendor No. at www.procurement.sc.gov)

PRINTED NAME

(printed name of person signing above)

STATE OF INCORPORATION

(If you are a corporation, identify the state of incorporation.)

OFFEROR'S TYPE OF ENTITY: (Check one) (See "Signing Your Offer" provision.)

___ Sole Proprietorship ___ Partnership ___ Other_____________________________

___ Corporate entity (not tax-exempt) ___ Corporation (tax-exempt) ___ Government entity (federal, state, or local)

COVER PAGE - ON-LINE ONLY (MAR. 2015)

SAP

SAP

PAGE TWO

(Return Page Two with Your Offer) HOME OFFICE ADDRESS (Address for offeror's home office / principal place of business)

NOTICE ADDRESS (Address to which all procurement and contract related notices should be sent.) (See "Notice" clause)

_________________________________________________ Area Code - Number - Extension Facsimile

_________________________________________________ E-mail Address

PAYMENT ADDRESS (Address to which payments will be sent.) (See "Payment" clause)

____Payment Address same as Home Office Address ____Payment Address same as Notice Address (check only one) ORDER ADDRESS (Address to which purchase orders will be sent) (See "Purchase Orders and "Contract Documents" clauses)

____Order Address same as Home Office Address ____Order Address same as Notice Address (check only one)

ACKNOWLEDGMENT OF AMENDMENTS

Offerors acknowledges receipt of amendments by indicating amendment number and its date of issue. (See "Amendments to Solicitation" Provision)

DISCOUNT FOR PROMPT PAYMENT

(See "Discount for Prompt Payment" clause)

PREFERENCES - A NOTICE TO VENDORS (SEP. 2009): On June 16, 2009, the South Carolina General Assembly rewrote the law governing preferences available to in-state vendors, vendors using in-state subcontractors, and vendors selling in-state or US end products. This law appears in Section 11-35-1524 of the South Carolina Code of Laws. A summary of the new preferences is available at www.procurement.sc.gov/preferences . ALL THE PREFERENCES MUST BE CLAIMED AND ARE APPLIED BY LINE ITEM, REGARDLESS OF WHETHER AWARD IS MADE BY ITEM OR LOT. VENDORS ARE CAUTIONED TO CAREFULLY REVIEW THE STATUTE BEFORE CLAIMING ANY PREFERENCES. THE REQUIREMENTS TO QUALIFY HAVE CHANGED. IF YOU REQUEST A PREFERENCE, YOU ARE CERTIFYING THAT YOUR OFFER QUALIFIES FOR THE PREFERENCE YOU'VE CLAIMED. IMPROPERLY REQUESTING A PREFERENCE CAN HAVE SERIOUS CONSEQUENCES. [11-35-1524(E)(4)&(6)]

PREFERENCES - ADDRESS AND PHONE OF IN-STATE OFFICE: Please provide the address and phone number for your in-state office in the space provided below. An in-state office is necessary to claim either the Resident Vendor Preference (11-35-1524(C)(1)(i)&(ii)) or the Resident Contractor Preference (11-35-1524(C)(1)(iii)). Accordingly, you must provide this information to qualify for the preference. An in-state office is not required, but can be beneficial, if you are claiming the Resident Subcontractor Preference (11-35-1524(D)).

____In-State Office Address same as Home Office Address ____In-State Office Address same as Notice Address (check only one)

PAGE TWO (SEP 2009)

End of PAGE TWO

AMENDMENTS TO SOLICITATION (JAN 2004)

(a) The Solicitation may be amended at any time prior to opening. All actual and prospective Offerors should monitor the following web site for the issuance of Amendments: www.procurement.sc.gov (b) Offerors shall acknowledge receipt of any amendment to this solicitation (1) by signing and returning the amendment, (2) by identifying the amendment number and date in the space provided for this purpose on Page Two, (3) by letter, or (4) by submitting a bid that indicates in some way that the bidder received the amendment. (c) If this solicitation is amended, then all terms and conditions which are not modified remain unchanged. [02-2A005-1]

THE SOLICITATION IS AMENDED AS PROVIDED HEREIN. INFORMATION OR CHANGES RESULTING FROM QUESTIONS WILL BE SHOWN IN A QUESTION-AND-ANSWER FORMAT. ALL QUESTIONS RECEIVED HAVE BEEN REPRINTED BELOW. THE “STATE’S RESPONSE” SHOULD BE READ WITHOUT REFERENCE TO THE QUESTIONS. THE QUESTIONS ARE INCLUDED SOLELY TO PROVIDE A CROSS-REFERENCE TO THE POTENTIAL OFFEROR THAT SUBMITTED THE QUESTION. QUESTIONS DO NOT FORM A PART OF THE CONTRACT; THE “STATE’S RESPONSE” DOES. ANY RESTATEMENT OF PART OR ALL OF AN EXISTING PROVISION OF THE SOLICITATION IN AN ANSWER DOES NOT MODIFY THE ORIGINAL PROVISION EXCEPT AS FOLLOWS: UNDERLINED TEXT IS ADDED TO THE ORIGINAL PROVISION. STRICKEN TEXT IS DELETED.

QUESTIONS AND ANSWERS

Q1)Section # VII Language-CONTRACTOR’S LIABILITY INSURANCE - SECURITY AND PRIVACY Question – Offeror is not the actual provider of the Software or services, but a reseller. Any insurance covering us covers risks to breach of our systems, not breaches to a third-party software provider. Can this section be marked as reserved or removed altogether?

A1) No. The State will not remove this section.

Q2) Section # VII Language- INDEMNIFICATION - THIRD PARTY CLAIMS Question - Will the State remove “or in connection with goods or services acquired hereunder” from this clause? Offeror will not indemnify on any third-party goods that may be acquired under this Solicitation, but for those claims caused by us.

A2) No. The State will not remove this language.

Q3) Section # VII Language-INDEMNIFICATION - THIRD PARTY CLAIMS - DISCLOSURE OF INFORMATION Question - Will the State confirm that this indemnity will not extend to an Offeror indemnifying the State for breaches/disclosures caused by the third-party software provider? Will the State remove the section of (c) that states this is without any limitation on liability whatsoever?

A3) In response to the first portion of the question, the State cannot confirm what the questioner has presented. In response to the second portion of the question, the State will remove the first sentence of subsection (c) from the clause “INDEMNIFICATION - THIRD PARTY CLAIMS – DISCLOSURE OF INFORMATION (FEB 2015).” Please see the amended clause in-full below.

Q4) Section # VII-Language INDEMNIFICATION - INTELLECTUAL PROPERTY Question - Will the State modify the definition of Acquired Items to exclude the cloud product and third-party goods? This IP indemnity would only extend to Contractor’s services.

A4) No. the State will not remove this language. The State expects that these requirements will be followed by any third parties involved in the Contractor’s performance of this contract.

Q5) Section # VII-Language INFORMATION SECURITY - SAFEGUARDING REQUIREMENTS Question - Will the State confirm that this only applies to information hosted by and in possession of the Contractor?

A5) No. The State expects that these requirements will be followed by any third parties involved in the Contractor’s performance of this contract.

Q6) Section # VII-Language INFORMATION USE AND DISCLOSURE Question - Will the State confirm that the third-party software provider is not considered a subcontractor, and not subject to (c) Flow Down? Third party software publishers will not typically accept additional security obligations and responsibilities from their resellers.

A6) The State cannot confirm what the questioner has presented.

GENERAL QUESTION

Q7) Will the State include a limitation of liability clause that have been included in other solicitations? Will the State consider language provided from Offeror in the response?

A7) No to both parts of the question.

STRICKEN TERMS AND CONDITIONS LANGUAGE:

INDEMNIFICATION - THIRD PARTY CLAIMS – DISCLOSURE OF INFORMATION (FEB 2015)

(a) Without limitation, Contractor shall defend and hold harmless Indemnitees from and against any and all suits, claims, investigations, or fines (hereinafter “action”) of any character (and all related damages, settlement payments, attorneys’ fees, costs, expenses, losses or liabilities) by a third party which arise out of or in connection with a disclosure of government information (as defined in the clause titled Information Security - Definitions) caused in whole or in part by any act or omission of contractor, its subcontractors at any tier, their employees, workmen, servants, agents, or anyone directly or indirectly employed by them or anyone for whose acts any of them may be liable, regardless of whether or not caused in part by an Indemnitee, and whether or not such action is brought by a third party or an Indemnitee, but only if the act or omission constituted a failure to perform some obligation imposed by the contract or the law.

(b) Indemnitee must notify contractor in writing within a reasonable period of time after Indemnitee first receives written notice of any action. Indemnitee’s failure to provide or delay in providing such notice will relieve contractor of its obligations under this clause only if and to the extent that such delay or failure materially prejudices contractors ability to defend such action. Indemnitee must reasonably cooperate with contractor’s defense of such actions (such cooperation does not require and is without waiver of an Indemnitees attorney/client, work product, or other privilege) and, subject to Title 1, Chapter 7 of the South Carolina Code of Laws, allow contractor sole control of the defense, so long as the defense is diligently and capably prosecuted. Indemnitee may participate in contractor’s defense of any action at its own expense. Contractor may not, without Indemnitee’s prior written consent, settle, compromise, or consent to the entry of any judgment in any such commenced or threatened action unless such settlement, compromise or consent (i) includes an unconditional release of Indemnitee from all liability related to such commenced or threatened action, and (ii) is solely monetary in nature and does not include a statement as to, or an admission of fault, culpability or failure to act by or on behalf of, an Indemnitee or otherwise adversely affect an Indemnitee. Indemnitee’s consent is necessary for any settlement that requires Indemnitee to part with any right or make any payment or subjects Indemnitee to any injunction.

(c) Notwithstanding any other provision, contractor’s obligations pursuant to this clause are without any limitation whatsoever. Contractor’s obligations under this clause shall survive the termination, cancellation, rejection, or expiration of the contract. This provision shall be construed fairly and reasonably, neither strongly for nor against either party, and without regard to any clause regarding insurance.

(d) “Indemnitee” means the State of South Carolina, its instrumentalities, agencies, departments, boards, political subdivisions and all their respective officers, agents and employees. [07-7B102-1]

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