Appendix GTC - General Terms & Conditions.pdf

Appendix GTC – General Terms and Conditions

Section 1: General Information for All Bidders

1.1 Contract Award

Upon receipt of necessary State approvals an award letter will be issued by NYSDOL to the successful bidder advising them of a contract award. A contract defining all deliverables and the responsibilities of the contractor and NYSDOL will then be developed for signature by all parties and for approval and processing in accordance with State policy and practice.

Note: The contract does not become legally binding upon the State until it is executed by the New York State Attorney General and the Office of the New York State Comptroller.

1.2 Cost of Proposal Preparation

NYSDOL will not be liable for any costs of work performed in the preparation and production of a proposal, or for any work performed prior to the formal execution of a contract. By submitting a proposal, bidders agree not to make any claims for, or have any right to, damages because of any misunderstanding or misrepresentation of the specifications, or because of any misinformation or lack of information.

1.3 Ownership of Proposals

All proposals and accompanying documentation will become the property of the State of New York and will not be returned. The content of each bidder’s proposal will be held in strict confidence during the bid evaluation process, and no details of the proposal will be discussed or disclosed outside of the evaluation process. The successful bidder’s proposal and a copy of the Solicitation will be made part of the agreement governing this procurement. Therefore, an official authorized to commit the bidder to a contract must sign the proposal.

1.4 Assurances

Bidder warrants that it has carefully reviewed the needs of the State as described in the Solicitation, its attachments and other communications related to the Solicitation and that it has familiarized itself with the specifications and requirements of the Solicitation and warrants that it can provide such services as represented in bidder's proposal. Bidder agrees that it will perform all of its obligations in the resultant contract in accordance with all applicable Federal, State, and local laws, regulations and policies now or hereafter in effect. Bidder affirms that the terms of the Solicitation and the attachments do not violate any contracts or agreements to which it is a party, and that its other contractual obligations will not adversely influence its capabilities to perform under the contract.

1.5 Electronic Files or Data

If electronic files are to be exchanged as a part of a proposal, they must conform to agency policy and guidelines.

1.6 Conflict of Interest

A. The bidder has provided a form (Vendor Assurance of No Conflict of Interest or Detrimental Effect), signed by an authorized executive or legal representative attesting that the bidder’s performance of the services does not and will not create a conflict of interest with, nor position the bidder to breach any other contract currently in force with the State of New York, that the bidder will not act in any manner that is detrimental to any state project on which the bidder is rendering services.

B. The bidder hereby reaffirms the attestations made in its proposal and covenants and represents that there is and shall be no actual or potential conflict of interest that could prevent the bidder's satisfactory or ethical performance of duties required to be performed pursuant to the terms of this agreement. The bidder shall have a duty to notify NYSDOL immediately of any actual or potential conflicts of interest.

C. In conjunction with any subcontract under this agreement, the bidder shall obtain and deliver to NYSDOL, prior to entering into a subcontract, a Vendor Assurance of No Conflict of Interest or Detrimental Effect form, signed by an authorized executive or legal representative of the subcontractor. The bidder shall also require in any subcontracting Agreement, greater than $100,000, that the subcontractor, in conjunction with any further subcontracting agreement, obtain and deliver to NYSDOL a signed and completed Vendor Assurance of No Conflict of Interest or detrimental Effect form for each of its subcontractors prior to entering into a subcontract.

D. NYSDOL and the bidder recognize that conflicts may occur in the future because the bidder may have existing, or establish new, relationships. NYSDOL will review the nature of any relationships and reserves the right to terminate this agreement for any reason, or for cause, if, in the judgment of NYSDOL, a real or potential conflict of interest cannot be cured.

1.7 Freedom of Information Law and Bidder’s Proposals

The purpose of New York State’s Freedom of Information Law (FOIL), which is contained in Public Officers Law (POL) Sections 84-90, is to promote the public’s right to know the process of governmental decision making and to grant maximum public access to governmental records.

Thus, a member of the public may submit a FOIL request for contracts awarded by the State or for the proposals submitted to the State in response to Requests for Proposals. After formal contract award, the proposal of the successful bidder and the proposals of non-successful bidders are subject to disclosure under FOIL. However, pursuant to POL Section 87(2) (d), a State agency may deny access to those portions of proposals or portions of a successful bidder’s contract which “are trade secrets or submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise.” Please note that information which you may claim as proprietary, copyrighted or rights reserved is not necessarily protected from disclosure under FOIL.

If there is information in your proposal which you claim meets the definition set forth in POL Section 87(2) (d), you must so inform us in a letter accompanying your proposal.

1.8 Equal Employment Opportunity (EEO)

By submission of its bid, the bidder warrants that it is an Equal Opportunity Employer and that it does not discriminate in its employment and business practices on any of the bases provided in the New York State Human Rights Law or any applicable federal laws. In addition, the successful bidder will agree to the assurances contained in the attached State and Federal Certifications.

1.9 Responsibility Determination

Article 11 of the New York State Finance Law requires that competitive bids be awarded to responsive and responsible bidders. In order to fulfill this requirement, you must complete the "Responsibility Questionnaire". By signing the bid proposal, you hereby authorize NYSDOL to review any records in its possession concerning your organization including, but not limited to, wage records, UI records, public works records, labor standards, and safety and health records.

Based on the responses you provide, the State will determine whether your organization is a responsible bidder. In the event that a bidder is found to be not responsible, the bidder may be disqualified.

If you are disqualified based on a determination of non-responsibility, you will be notified in writing and may appeal the determination in writing within 10 days to NYSDOL. If you fail to identify a violation and NYSDOL discovers the failure to disclose such violation, your contract may be terminated immediately upon written notice.

The State recommends that bidders file the required Vendor Responsibility Questionnaire online via the New York State VendRep System. To be considered timely, questionnaires filed online require that the bidder certify the questionnaire no more than six months before the proposal due date. To enroll in and use the New York State VendRep System, see the VendRep System Instructions available at http://www.osc.state.ny.us/vendrep or go directly to the VendRep System online at https://portal.osc.state.ny.us.

Bidders must provide their New York State Vendor Identification Number when enrolling. To request assignment of a Vendor ID or for VendRep System assistance, contact the Office of the State Comptroller’s Help Desk at 866-370-4672 or 518-408-4672 or by email at ciohelpdesk@osc.state.ny.us. Bidders opting to complete and submit a paper questionnaire can obtain the appropriate questionnaire from the VendRep website www.osc.state.ny.us/vendrep or the Office of the State Comptroller’s Help Desk at 866-370- 4672 or 518-408-4672 or by email at ciohelpdesk@osc.state.ny.us.

Upon notification of award, the successful bidder may be required to update/recertify the Vendor Responsibility Questionnaire.

1.10 Lobbying Law-Compliance with State Finance Law §§139-j, 139-k

It is the policy of NYSDOL to employ the best procurement practices as described in the State Finance Law and other applicable statutes. Pursuant to State Finance Law §§139-j and 139-k (the “Lobbying Law”), this solicitation includes and imposes certain restrictions on communications between NYSDOL and a bidder during the procurement process. A bidder is restricted from making contacts from the earliest written notice of intent to solicit offers through final award and approval of the contract resulting from this solicitation by NYSDOL and, if applicable, Office of the State Comptroller (the “restricted period”) to other than designated staff unless it is a contact that is included among certain statutory exceptions set forth in State Finance Law §139-j (3) (a). Designated staff for this procurement, as of the date thereof, is identified in Section 1. NYSDOL are required to obtain certain information when contacted during the restricted period for the procurement and to record all contacts during the restricted period.

NYSDOL is also required to make a determination of the responsibility of the bidder pursuant to these two statutes. Certain findings of non-responsibility can result in rejection for contract award and in the event of two findings within a four-year period the bidder is debarred from obtaining governmental procurement contracts.

As part of the proposal, a bidder is expected to certify that it understands and agrees to comply with NYSDOL’s policy relative to permissible contacts during a governmental procurement pursuant to State Finance Law §139-j (3) and that all information provided to NYSDOL with respect to State Finance Law 139-k is complete, true, and accurate. Attachment “Bidders Affirmation of Understanding and Agreement” is included in this solicitation for this purpose.

Failure of a bidder to comply with these provisions may result in the disqualification of the bidder’s proposal.

1.11 Sales Tax Registration Certification Requirement

Tax Law Section 5-a requires certain contractors to certify to the New York State Department of Taxation and Finance (DTF) whether or not the contractor and its affiliates are required to register to collect state sales and compensating use tax. Contractors must also certify to NYSDOL (the procuring agencies) that they have filed the certification with DTF and that it is true and complete. To make these certifications, a contractor must file a properly completed Form ST-220-TD with DTF provided in Attachment ST-220-TD “Contract Certification to New York State Department of Taxation and Finance” and a properly completed Form ST-220-CA provided in Attachment “Contractor Certification to Covered Agency” with NYSDOL. These requirements must be met before the contract can take effect.

A copy of Form ST-220-CA and the instructions for completing this form are attached to this Solcitation. If selected, the bidder will then be required to submit an original notarized ST-220- CA to NYSDOL. Bidders may call the New York State Department of Taxation and Finance at

(518) 485-2889 for any and all questions regarding Tax Law Section 5-a. For additional information, please refer to Publication 223, Questions and Answers Concerning Tax Law Section 5-a (as amended, effective April 26, 2006), available at www.tax.ny.gov.

The contractor’s certification will be incorporated into the contract resulting from this Solicitation. If, during the term of the contract, the State discovers that a certification is false, such false certification will constitute a material breach of the contract and may, in the discretion of NYSDOL, result in contract termination.

1.12 Consultant Disclosure Legislation

In accordance with State Finance Law §§ 8, 22 and 163 as amended by Chapter 10 of the Laws of 2006, State contractors must disclose, by employment category, the number of persons employed to provide services under the contract, the number of hours worked, and the amount paid to contractor by NYSDOL as compensation for work performed by each employment category of employees. This will include information on any persons working under any subcontracts with contractor.

The State reserves the right to terminate any contract executed pursuant to this Solicitation in the event it is found that the Consultant Disclosure forms filed by contractor in accordance with State Finance Law were intentionally false or intentionally incomplete. Upon such finding, the State may exercise its termination right by providing written notification to contractor in accordance with the written notification terms of the contract.

By submitting a bid, the bidder certifies that all information provided to the State pursuant to State Finance Law § 163, as amended by Chapter 10 of the Laws of 2006, is complete, true, and accurate. Form A must be completed and returned by the successful bidder as part of the contract submission. Form B must be submitted each year the contract is in effect and will capture historical information, detailing actual employment data for the most recently concluded State fiscal year (April 1 – March 31). The successful bidder understands that they must file Form B, annually by May 15, with NYSDOL, the Department of Civil Service, and the Office of the State Comptroller.

1.13 Electronic Payments

Payment for invoices submitted by the contractor shall only be rendered electronically unless payment by paper check is expressly authorized by the State, in the State's sole discretion, due to extenuating circumstances. Such electronic payment 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 Statewide Financial System’s (SFS) website esupplier.sfs.ny.gov, by email at epunit@osc.state.ny.us, or by telephone at 1-866-370-4672. Contractor acknowledges that it will not receive payment on any invoices submitted under this contract 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.

1.14 Reservation Clauses

A. NYSDOL, in order to serve the best interests of the State, reserve the right to:

1. Postpone or cancel this Solicitation upon notification to all bidders;

2. Amend the specifications after their release with appropriate notice to all bidders;

3. Request bidders to present supplemental information clarifying their proposal, either in writing or in formal presentation;

4. Waive or modify minor irregularities in proposals received after prior notification to the bidder;

5. Adjust or correct any arithmetic errors in the cost proposal, and correct typographical errors upon written notice to and with the concurrence of the bidder if errors exist in the proposal; and/or

6. Accept all or part of a bidder’s proposal in selecting the optimum approach.

7. In the event a bidder fails to submit required legal/regulatory documents, attachments, and/or appendices, NYSDOL reserves the right to contact the bidder and request submission of missing mandatory documentation.

B. NYSDOL also reserves the right to evaluate and/or reject any and all proposals received in response to this Solicitation, in whole or in part, and to waive immaterial technicalities, irregularities and omissions if such action is considered to be in the best interest of the State, including:

1. Contact bidders’ references as a check on qualifications;

2. Award the contract to other than the lowest bidder;

3. Award contracts to more than one bidder;

4. Negotiate with selected bidder prior to contract award;

5. Negotiate with the next highest rated bidder if negotiating a contract with the selected bidder(s) cannot be accomplished within 30 days; however, the State reserves the right to extend for another period of 15 days (no bidder will have any rights against the State arising from such negotiations);

6. Disqualify any bidder based on information brought to the attention of the State for false information or for omission of material information;

7. Disqualify any bidders that are determined not to be responsive or responsible;

8. Disqualify incomplete proposals or any bidder whose proposal fails to conform to Solicitation requirements;

9. Reissue a modified version of this Solicitation. With regard to all modifications, clarifications, or revisions to this Solicitation which the State reserves the right to issue, any such modification issued on or before the due date for proposals shall go to all entities which have requested a copy of this Solicitation; after that date (or an amended date, as the case may be), notification will be only to bidders who have submitted proposals. Please note that the State’s right to issue modifications, clarifications or revisions permits any addition or deletion of requirements as the State may deem appropriate, subject only to the bounds set forth in the Contract Reporter issuance;

10. Amend the specifications contained herein after their release. In the event of such an amendment, all competing bidders will be notified in writing and any modified schedules will also be published in the New York State Contract Reporter website; Eliminate any requirement(s) unmet by all bidders upon notice to all parties submitting proposals;

11. Alter any schedules or dates specified in this Solicitation to accommodate changes in existing conditions. In the event of such an amendment, all competing bidders will be so notified in writing;

12. Make any payment contingent upon the submission of specific deliverables; and

13. Require that all offers are held open for a period of 120 days unless otherwise expressly provided for in writing.

1.15 Debriefing/Protest Procedures

A. Scope

These procedures advise unsuccessful bidders how they may request a debriefing regarding the review conducted by NYSDOL of the bidder’s proposal, or to file a protest challenging the award of a procurement contract by NYSDOL to another bidder. These procedures are issued so that:

1. Bidders are adequately notified of the process for: requesting a debriefing on the proposal they submitted, and/or filing a protest to challenge the award of a procurement contract to another bidder; and

2. NYSDOL can provide a timely response to such requests.

B. Policy

It is NYSDOL policy to employ the best procurement practices in support of agency operations and in accordance with applicable statute. This requires protecting the interests of taxpayers and promoting fairness in the procurement contracting process.

To this end, an unsuccessful bidder shall be provided an opportunity to request a debriefing on its submitted proposal and to protest NYSDOL’s award of a procurement contract to another bidder.

C. General Requirements

NYSDOL shall notify all bidders as to whether they are successful or unsuccessful with respect to a particular procurement for which they have submitted a bid or proposal.

Any solicitation issued by NYSDOL with respect to a contract award shall include a notice that an unsuccessful bidder may request a debriefing regarding its submitted proposal and/or protest the contract award. Such notice shall advise that such request for a debriefing or protest shall be filed with NYSDOL contact person designated in the solicitation.

D. Procedure to Request a Debriefing

Upon request, NYSDOL will provide an unsuccessful bidder with an opportunity for a debriefing as to the process used in NYSDOL procurement or as to why its bid or proposal was unsuccessful.

In light of the restrictions on “contacts” under the Procurement Lobbying Law (State Finance Law §139-j) where appropriate, any request for a debriefing must be made to NYSDOL designated contact person for the procurement in question.

1. The unsuccessful bidder must request a debriefing within fifteen (15) calendar days of the date of notice of the contract award. (Note: In the event of a single/sole source or emergency contract, the notification will appear on the agency website.)

2. NYSDOL designated contact will coordinate an informal debriefing and respond within five (5) business days, with an explanation as to why the bidder was unsuccessful, in an effort to assist the bidder toward future success in competition.

This information may include ranking of the bidder in technical and cost scoring.

Note: Where a bidder is disqualified due to the failure to meet submission deadlines or mandatory requirements as stated in the solicitation, the debriefing will consist of an explanation of the circumstances of the disqualification.

3. Upon receipt of this information, the unsuccessful bidder may request a further debriefing/meeting to address specific bidder concerns. The unsuccessful bidder must request this further debriefing withinfive (5) business days of NYSDOL’s initial debriefing response.

E. Procedure to Protest the Award of a Procurement Contract by NYSDOL

A participant in the procurement process or a party foreclosed from such participation by the actions of NYSDOL may file a formal written protest to challenge a contract award with NYSDOL in accordance with the procedures specified below.

1. Submission of Bid or Award Protests:

a) Deadline for Submission

i. Concerning Errors, Omissions, or Prejudice in the Bid Specifications:

A formal written protest concerning the drafting of the bid specifications must be received by NYSDOL at least ten (10) business days prior to the date set in the solicitation for the receipt of bids/proposals, unless the solicitation document stipulates otherwise. If the date set in the solicitation for receipt of bids is less than ten (10) business days from the date of issue, written protests concerning the specifications must be received by NYSDOL at least three (3) business days before the time designated in the solicitation for the receipt of bids.

ii. Concerning Proposed Contract Award:

A formal written protest to challenge a contract award must be received by NYSDOL within fifteen (15) business days of the date of notice of the contract award.

b) Transmittal

All protests must be submitted in writing to NYSDOL contact designated in the solicitation. The following statement must be clearly and prominently displayed on the envelope or package; the subject line, if sent by e-mail;

or, if sent by facsimile transmission, on the fax cover sheet: “Bid Protest of NYSDOL Solicitation (Bid#)”.

c) Content

The protest must be in writing and include:

i. A statement of all factual and/or legal grounds which form the basis for disagreement with a specification or a procurement determination;

ii. A description of all remedies or relief requested; and

iii. Copies of all applicable supporting documentation.

2. Review and Determination:

a) NYSDOL will issue a response to a protest concerning errors, omissions, or prejudice in the bid specifications within three (3) business days after receipt of the protest.

b) NYSDOL will issue a response to a protest concerning a contract award within five (5) business days after receipt of the protest.

c) Protests shall be resolved through correspondence; however, NYSDOL may, in its sole discretion, request a meeting or conference call to discuss a written protest.

d) NYSDOL shall send a copy of the decision to the protester or its agent.

3. Reservation of Rights and Responsibilities of NYSDOL

a) Nothing shall preclude NYSDOL from obtaining additional information relevant to making its determination from the unsuccessful bidder, the successful bidder, or any other source NYSDOL deems appropriate.

b) NYSDOL may, in their sole discretion, waive any deadline or requirements set forth in these procedures, or consider any materials submitted in writing, beyond the time period set forth herein.

c) NYSDOL shall include the protest and its determination thereon in the procurement record relevant to the bid being protested.

d) Nothing herein shall preclude NYSDOL from negotiating the terms and conditions of the contract with the successful bidder during the time period in which a protest may be filed, or during the resolution of a pending protest.

F. Appeal to the Office of the State Comptroller

If the unsuccessful bidder is not satisfied with NYSDOL’s determination on its protest, such bidder may appeal NYSDOL’s determination by filing a written appeal within ten

(10) business days of its receipt of NYSDOL’s protest determination with the Office of the State Comptroller, in accordance with New York State Office of the State Comptroller Procurement and Disbursement Bulletin G-232 and OSC Contract Award Protest Procedures. These Contract Award Protest Procedures apply to all contracts subject to OSC approval under State Finance Law §112, or that is otherwise submitted to OSC for approval.

1.16 Certifications to Sexual Harassment Prevention

Pursuant to NY State Finance Law §139-l, all bidders must certify to implementing a sexual harassment prevention policy and training that complies with NY Labor Law § 201-g.

In order to comply with NY Labor Law § 201-g, bidders must implement sexual harassment prevention policy and training that complies, at a minimum, with NYS Department of Labor’s model sexual harassment prevention policy and training.

The NYS Department of Labor’s model sexual harassment prevention policy and training may be accessed at: https://www.ny.gov/combating-sexual-harassment-workplace/employers.

Pursuant to NY State Finance Law §139-l, each bidder must be able certify to the following statement if awarded the contract: “By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies its own organization, under penalty of perjury, that the bidder has and has implemented a written policy addressing sexual harassment prevention in the workplace and provides annual sexual harassment prevention training to all of its employees. Such policy shall, at a minimum, meet the requirements of section two hundred one-g of the labor law.”

Section 2: General Information for Successful Bidder

If the bidder is awarded a contract as a result of this Solicitation, the bidder will be required to accept all of the following as part of the contract. These terms are not negotiable – bidders may not set forth objections to these terms in their proposal.

2.1 Contract Amendment

Any changes to the contract awarded based on this Solicitation must be in writing with the mutual consent of both parties. All changes to the services and fees set forth in the Solicitation must be initiated through a written amendment agreed upon by the successful bidder and NYSDOL. Any and all changes to the contract are subject to the approval of the New York State Office of the State Comptroller.

2.2 Compliance with New York State Policy and Law – Appendix A

All work conducted under the contract must be in compliance with the procedures set forth in this Solicitation under the General Terms and Conditions. In addition, the successful bidder must agree to the terms specified in the document entitled “Appendix A, Standard Clauses for all New York State Contracts.” The State does not allow any modifications to this document.

Appendix A will be incorporated, in its entirety, into any contract resulting from this Solicitation.

2.3 Electronic Files or Data

If electronic files are to be exchanged as a part of the contract, they must conform to agency requirements, policy and guidelines.

2.4 Prompt Payment Provisions

The payment of interest on certain payments due and owed by the State may be made in accordance with the criteria established in Article XI-A of the State Finance Law.

2.5 Travel

For approved contracts that permit the reimbursement of travel expenses, the successful bidder shall only be reimbursed for mileage, lodging, and meals (if applicable) to the extent authorized by the NYS Office of the State Comptroller.

2.6 Minority and Women-Owned Business Enterprise and Equal Employment Opportunity Participation and Service-Disabled Veteran-Owned Businesses Participation

SEE APPENDIX MWBE – MWBE/EEO Requirements and Procedures SEE APPENDIX SDVOB – SDVOB Requirements and Procedures

2.7 Insurance (Reserved)

2.8 Workers’ Compensation Law

Compliance with requirement for workers’ compensation and disability benefits insurance coverage: After receipt of contract award letter, successful bidder must provide NYSDOL with proof of compliance with workers’ compensation and disability insurance coverage requirements set forth in Sections 57 and 220(8) of the Workers’ Compensation Law.

To comply with the coverage provisions of Section 57 businesses must be legally exempt from obtaining workers’ compensation insurance coverage; or obtain such coverage from insurance carriers; or be self-insured or participate in an authorized group self-insurance plan. Successful bidder must provide one of the following forms to the Department:

C-105.2 Certificate of workers’ compensation insurance (business’ insurance carrier should be able to provide this form to NYSDOL)

SI-12 Certificate of workers’ compensation self-insurance or Form GSI-105.2 Certificate of Participation in Workers’ Compensation Group Self-Insurance (business contacts the Workers Compensation Board’s (WCB) self-insurance office at 518-402-0247)

GSI-105.2 Certificate of participation in workers’ compensation group self-insurance or Form U-26.3 issued by the State Insurance Fund (business’ group self-insurance administrator should be able to provide this form to NYSDOL).

CE-200 Certificate of Attestation of Exemption, which replaces Form WC/DB-100 for applicants seeking exemptions starting on Dec. 1, 2008 (available at:

http://www.wcb.ny.gov

To comply with the coverage provisions of Section 220(8) businesses may be legally exempt from obtaining disability insurance coverage; obtain such coverage from insurance carriers; or be self-insured. Successful bidder must provide one of the following forms to NYSDOL:

DB-120.1 Certificate of disability benefits insurance, or

DB-155 Certificate of disability benefits self-insurance (business contacts the WCB’s self-insurance office at 518-402-0247).

CE-200 (noted above).

Contracts will not be forwarded to the successful bidder until they have provided NYSDOL with proof of compliance with workers’ compensation and disability insurance coverage requirements set forth above.

2.9 Publicity

Publicity includes, but is not limited to, news conferences, news releases, advertising, brochures, reports, discussions and/or presentations at conferences or meetings. The inclusion of agency materials, agency name(s), or other such reference to New York State and/or NYSDOL in any document or forum is considered publicity. News releases or any other public announcements regarding this project may not be released without prior approval from

NYSDOL.

2.10 Americans with Disabilities Act (ADA)

The successful bidder must comply with all applicable requirements of the Americans with Disabilities Act (ADA), codified at Title 42 of the United States Code, Section 12101 et seq., the ADA Amendments Act of 2008 (ADAAA), (Pub.L. 110-325, effective January 1, 2009) and associated regulations, including, but not limited to, those located in 28 C.F.R. Part 36. The successful bidder must comply with all applicable requirements of the New York State Human Rights Law, codified in the Executive Law Sections 290 to 301 and applicable regulations implemented pursuant to that law. The successful bidder must warrant to NYSDOL that the successful bidder is in compliance with both the ADA and its regulations and the New York State Human Rights Law and its regulations.

Any products developed as a result of this Solicitation must be in a format that can be converted for use by individuals with disabilities to meet the reasonable accommodation standards established by the ADA and ADAAA, and any applicable regulations.

2.11 Remedies for Breach

It is understood and agreed that all rights and remedies afforded below shall be in addition to all remedies or actions otherwise authorized or permitted by law. In the event of contractor’s material breach, which remains incurred for more than thirty (30) days after written notice to the contractor, the Commissioner may pursue any of the actions in “A” through “D” below:

A. Cover/Substitute Performance

In the event of contractor’s material breach, the Commissioner may, with or without formally bidding same:

1. Purchase from other sources; or

2. If, after making reasonable attempts, under the circumstances then existing, to timely obtain acceptable service or acquire replacement product of equal or comparable quality, the Commissioner is unsuccessful, the Commissioner may acquire replacement of lesser or greater quality.

Such purchases may, in the discretion of the Commissioner, be deducted from the contract quantity and payments due contractor.

B. Withholding of Payment(s) In any case where a question of non-performance by contractor arises, payment may be withheld in whole or in part at the discretion of the Commissioner. Should the amount withheld be finally paid, a cash discount originally offered may be taken as if no delay in payment had occurred.

C. Reimbursement of Costs Incurred

The contractor agrees to reimburse NYSDOL promptly for any and all additional costs and expenses incurred for acquiring acceptable services, and/or 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 expended or incurred by NYSDOL in connection therewith, including reasonable attorney’s fees, shall be paid by the contractor.

D. Deduction/Credit

Sums due as a result of these remedies may be deducted or offset by NYSDOL 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 NYSDOL 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 and/or liquidated damages, which arise from the administration of the contract.

2.12 Outstanding Liabilities

All outstanding liabilities and UI contributions, if any, due to NYSDOL from the contractor, or from contractor’s partners, officers, agents or Subcontractors engaged in providing services under the contract other than contributions being contested by any such party, must be satisfied prior to contract execution or a payment schedule arranged for timely satisfaction of such outstanding liabilities.

2.13 Public Officers Law and Ethics Requirements

"No statewide elected official, state officer or employee, member of the legislature, legislative employee or political party, chairman or firm or Association of which such person is a member, or corporation, ten per centum or more of the stock of which is owned or controlled directly or indirectly by such person, shall (i) sell any goods or services having a value in excess of twenty-five dollars to any state agency, or (ii) contract for or provide such goods or services with or to any private entity where the power to contract, appoint or retain on behalf of such private entity is exercised, directly or indirectly, by a state agency or officer thereof, unless such goods or services are provided pursuant to an award or contract let after public notice and competitive bidding. This paragraph shall not apply to the publication of resolutions, advertisements or other legal propositions or notices in newspapers designated pursuant to law for such purpose and for which the rates are fixed pursuant to law.”

A State officer or employee may not solicit, accept or receive a gift of more than nominal value from, among others, any person or entity registered as a lobbyist or a client. New York Public Officers Law §73(5). It is also unlawful for a registered lobbyist or client to offer or provide such a gift to a public official. New York Legislative Law §1-m. Gifts of any value cannot be solicited, accepted or received, if doing so would constitute or create a conflict or appearance of such a conflict with the proper discharge of the employee’s duties. It is the Department of Labor's policy not to accept anything, regardless of the value. Please be advised that offering, providing, soliciting, accepting or receiving complimentary attendance to certain kinds of events, such as receptions at which hors d’oeuvres or alcoholic beverages are served, may constitute a violation of the Legislative Law and/or the Public Officers Law provisions with respect to unlawful gifts.”

Contractors, consultants, vendors, and subcontractors may hire former State Agency or Authority employees. However, as a general rule and in accordance with New York Public Officers Law §73(8), former employees of the State Agency or Authority may neither appear nor practice before the State Agency or Authority, nor receive compensation for services rendered on a matter before the State Agency or Authority, for a period of two years following their separation from State Agency or Authority service. In addition, former State Agency or Authority employees are subject to a “lifetime bar” from appearing before the State Agency or Authority or receiving compensation for services regarding any transaction in which they personally participated or which was under their active consideration during their tenure with the State Agency or Authority.

The Contractor and its Subcontractors shall not engage any person who is, or has been at any time, in the employ of the State to perform services in violation of the provisions of the New York Public Officers Law, other laws applicable to the service of State employees, and the rules,regulations, opinions, guidelines or policies promulgated or issued by the New York State Joint Commission on Public Ethics,or its predecessors (collectively, the “Ethics Requirements”).

The Contractor certifies that all of its employees and those of its Subcontractors who are former employees of the State and who are assigned to perform services under this Contract shall be assigned in accordance with all Ethics Requirements. During the Term, no person who is employed by the Contractor or its Subcontractors and who is disqualified from providing services under this Contract pursuant to any Ethics Requirements may share in any net revenues of the Contractor or its Subcontractors derived from this Contract. The Contractor shall identify and provide the State with notice of those employees of the Contractor and its Subcontractors who are former employees of the State that will be assigned to perform services under this Contract, and make sure that such employees comply with all applicable laws and prohibitions. The State may request that the Contractor provide it with whatever information the State deems appropriate about each such person’s engagement, work cooperatively with the State to solicit advice from the New York State Joint Commission on Public Ethics, and, if deemed appropriate by the State, instruct any such person to seek the opinion of the New York State Joint Commission on Public Ethics. The State shall have the right to withdraw or withhold approval of any Subcontractor if utilizing such Subcontractor for any work performed hereunder would be in conflict with any of the Ethics Requirements. The State shall have the right to terminate this Contract at any time if any work performed hereunder is in conflict with any of the Ethics Requirements.

2.14 Independent Contractor

It is understood and agreed that the legal status of the contractor, its agents, officers and employees and/or subcontractors under this contract is that of an independent contractor, and in no manner shall they be deemed employees of the State, and therefore are not entitled to any of the benefits associated with such employment. The contractor agrees, during the term of this contract, to maintain at contractor’s expense those benefits to which its employees would otherwise be entitled by law, including health benefits, and all necessary insurance for its employees, including worker’s compensation, disability and UI, and to provide the State with certification of such insurance upon request. The contractor remains responsible for all applicable federal, state and local taxes, and all Federal Insurance Contribution Act (FICA) contributions.

2.15 Non-Waiver

The failure by NYSDOL to require performance of any provision of the resultant contract shall not affect NYSDOL’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of the resultant contract constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

2.16 Vendor Responsibility

A. General Responsibility The contractor shall at all times during the contract term remain responsible. The contractor agrees, if requested by the NYSDOL Commissioner or his or her designee, 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.

B. Suspension of Work (for Non-Responsibility)

NYSDOL Commissioner or his or her designee, in his or her sole discretion, reserves the right to suspend any or all activities under this 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. Contract activity may resume at such time as the NYSDOL Commissioner or his or her designee issues a written notice authorizing a resumption of performance under the contract.

C. Termination (for Non-Responsibility)

Upon written notice to the contractor, and a reasonable opportunity to be heard with appropriate NYSDOL officials or staff, the contract may be terminated by the NYSDOL Commissioner or his or her designee at the contractor’s expense where the contractor is determined by the NYSDOL Commissioner or his or her designee to be non-responsible.

In such event, the NYSDOL Commissioner or his or her designee may complete the contractual requirements in any manner he or she deem advisable and pursue available legal or equitable remedies for breach.

2.17 Integration, Merger & Order of Precedence

This bid and any resultant contract shall incorporate by reference the following documents as if set forth herein at length and constitute the entire Agreement between parties.

In the event of any discrepancy, disagreement or ambiguity between this Agreement and any Appendices, the documents shall be given preference in the following order to interpret and to resolve such discrepancy, disagreement or ambiguity:

A. Appendix A

B. This Agreement including all Appendices, Attachments, and Exhibits

C. Solicitations including Questions and Answers and all Appendices, Attachments, Exhibits, and Certifications

D. The successful bidder’s proposal The parties understand and agree that any and all deviations or exceptions taken by contractor to the Department's Solicitation are hereby withdrawn except only to the extent that such exceptions or deviations have been explicitly incorporated into this Agreement.

2.18 Primary Contractor

The State requires that the contract for the services addressed in this Solicitation be issued to one primary contractor. This contractor shall be responsible for the development, implementation and maintenance of all services in this contract offer. The bidder must identify all other service providers and equipment manufacturers being used to meet contractual obligations. As the prime contractor, it will be the responsibility of the successful bidder to maintain those services and equipment, if applicable, and to be the sole point of contact with such manufacturers and service providers with respect to contractual obligations. All contractors must be aware of, and apply, the requirements of the Omnibus Procurement Act of 1992 shown in Appendix A of this Solicitation.

2.19 Subcontracting

The contractor's use of subcontractors shall not diminish the contractor's obligations to complete the work in accordance with the contract. The contractor shall control, coordinate and be responsible for the work of subcontractors. The contractor shall be responsible for informing subcontractors by written contract of the terms, conditions and requirements of the contract.

The State reserves the right to approve all subcontractors prior to their assumption of duties on behalf of the contractor.

2.20 Dispute Resolution

The parties will endeavor in good faith to resolve any disagreement between them. The contractor and the State agree to use the following procedure to review their performance or to resolve disputes.

A. Problems which cannot be solved by supervisory staff will be set down in writing and submitted to the designated State and contractor representatives for resolution.

B. Disputes which cannot be resolved by the designated State and contractor representatives will be resolved by the Commissioner of the Department of Labor, or the Commissioner’s designee.

C. If the contractor does not agree with the findings of the Commissioner of the Department of Labor, or the Commissioner’s designee, the contractor may pursue any legal or equitable remedies it may have.

D. During the course of the disagreement, or if the contractor pursues any legal or equitable remedy outside the State, it will continue to provide services according to the contract until such proceedings are concluded, provided the State continues to make the required payments under the contract.

2.21 Patent and Copyright Infringements

The contractor must fully indemnify, defend and save harmless the State, its officers, employees, and agents, from and against any and all losses, liabilities, judgments, damages, awards and costs (including legal fees and expenses), arising out of or related to any claim of, or action for, infringement of a patent, or of any copyright, trademark, trade secret or other third party intellectual property rights in each case to the extent caused by intellectual property provided by or through contractor and used to perform the services, without limitation. The foregoing provisions of this paragraph will not apply to the State’s misuse or modification of such intellectual property, the State’s failure to use corrections or enhancements made available by the contractor; the State use of the intellectual property in combination with any product or information not provided by the contractor, where such misuse, modification or combination gives rise to the infringement. The State will give the contractor:

A. Prompt written notice of any action, claim or threat of infringement suit, or other suit;

B. The opportunity to take over, settle or defend such action, claim, or suit at the contractor’s sole expense; and

C. Assistance in the defense of any such action at the expense of the contractor.

In the event that an action at law or in equity is commenced against the State or NYSDOL arising out of the performance of this Agreement by the contractor, its officers, partners, employees, subcontractors, or agents and if the contractor is of the opinion that the allegations in such action, in whole or in part, are not covered by the indemnification and defense provisions set forth herein, the contractor, after receiving notice of such action, must immediately notify the State, in writing, specifying to what extent the contractor believes it is obligated to defend and indemnify under the terms and conditions of this Agreement.

2.22 General Indemnification and Liability Terms

A. Neither the contractor, nor the State shall be liable for any delay or failure in performance beyond its control resulting from acts of war, hostility or sabotage; act of God; electrical, internet, or telecommunications outage that is not caused by the obligated party; or government restrictions, or other force majeure. The parties shall use reasonable efforts to eliminate or minimize the effect of such force majeure events upon performance of their respective duties under this Agreement. If such event continues for more than ninety (90) days, either party may terminate all or any agreed upon portion of the service(s) immediately upon written notice. This Article does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures, or the State’s obligation to pay for service(s) provided by the contractor which have been approved by the State.

B. The contractor shall be fully liable for any act or omission of the contractor, its employees, subsidiaries, affiliates, partners, agents and subcontractors, and shall fully indemnify, defend and hold harmless the State, their officials, agents and employees, without limitation, from suits, actions, damages and costs of every name and description (including reasonable attorney’s fees and expenses)…