ATT D-1 GT&C.pdf

ATTACHMENT D-1

GENERAL TERMS AND CONDITIONS

DOH CONTRACT

DOH#24-029C Care-a-Van Mobile Services

DOH RFXX#24-XXXC Page 1 of 18

EXHIBIT D-1 GENERAL TERMS AND CONDITIONS

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I. DEFINITIONS

As used throughout this contract, the following terms shall have the meanings set forth below:

1. “Allowable Cost” shall mean an expenditure which meets the test of the Uniform Guidance (2CFR

200) (see “I. Federal Compliance”). The most significant factors affecting allowability of cost are;

1) they must be necessary and reasonable, 2) they must be allocable, 3) they must be authorized or not prohibited under State or local laws and regulations, and 4) they must be adequately documented. For more specifics see Selected Items of Cost 2 CFR 200.420).

2. “Client” shall mean an agency, firm, organization, individual or other entity applying for or receiving services under this contract.

3. “Cognizant State Agency” shall mean the State agency from whom the sub-recipient receives federal financial assistance. If funds are received from more than one State agency, the cognizant

State agency shall be the agency who contributes the largest portion of federal financial assistance to the sub-recipient, unless a cognizant State agency has been designated by OFM.

4. “Confidential Information” shall mean information that is exempt from disclosure under chapter

42.56 RCW, and other State or Federal statutes and regulations.

5. “Contractor” shall mean that agency, firm, provider, organization, individual or other entity performing services under this contract. It shall include any subcontractor retained by the prime

Contractor as permitted under the terms of this contract.

A contract is for the purpose of obtaining goods and services for the non-Federal entity's own use and creates a procurement relationship with the Contractor. See §200.22 Contract. Characteristics indicative of a procurement relationship between the non-Federal entity and a Contractor are when the non-Federal entity receiving the Federal funds:

A. Provides the goods and services within normal business operations;

B. Provides similar goods or services to many different purchasers;

C. Normally operates in a competitive environment;

D. Provides goods or services that are ancillary to the operation of the Federal program; and

E. Is not subject to compliance requirements of the Federal program as a result of the agreement, though similar requirements may apply for other reasons.

6. “Contracting Officer” shall mean that individual(s) of the Contracts and Procurement Office of DOH and his/her delegates within that office authorized to execute this contract on behalf of DOH.

7. “Department” shall mean the Department of Health (DOH) of the State of Washington, any division, section, office, unit, or other entity of the department, or any of the officers or other officials lawfully representing DOH.

8. “Equipment” shall mean an article of non-expendable, tangible property having a useful life of more than one year and an acquisition cost of $5,000 or more.

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9. “Noncompliance” shall mean if a non-Federal entity fails to comply with Federal statutes, regulations or the terms and conditions of a Federal award, the Federal awarding agency or pass-through entity may impose additional conditions, as described in §200.207 Specific conditions. If the Federal awarding agency or pass-through entity determines that noncompliance cannot be remedied by imposing additional conditions, the Federal awarding agency or pass-through entity may take one or more of the following actions, as appropriate in the circumstances:

A. Temporarily withhold cash payments pending correction of the deficiency by the non-

Federal entity or more severe enforcement action by the Federal awarding agency or pass-through entity.

B. Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the cost of the activity or action not in compliance.

C. Wholly or partly suspend or terminate the Federal award.

D. Initiate suspension or debarment proceedings as authorized under 2 CFR part 180 and

Federal awarding agency regulations (or in the case of a pass-through entity, recommend such a proceeding be initiated by a federal awarding agency).

E. Withhold further Federal awards for the project or program.

F. Take other remedies that may be legally available.

10. “Personal Information” shall mean information identifiable to any person, including, but not limited to, information that relates to a person's name, health, finances, education, business, use or receipt of governmental services or other activities, addresses, telephone numbers, social security numbers, driver license numbers, other identifying numbers, and any financial identifiers. Personal information includes “protected health information” as set forth in 45 CFR § 164.50 as currently drafted and subsequently amended or revised and any other information that may be exempt from disclosure to the public or other unauthorized persons under either chapter 42.56 RCW or other

State and Federal statutes.

11. “Reimbursement” shall mean that DOH will repay the Contractor for allowable costs incurred under the terms of this contract.

12. “Sensitive Data” shall mean data that is held confidentially, and if compromised, may cause harm to individual citizens, or create a liability for the State.

13. “Specific Conditions”

A. The Federal awarding agency or pass-through entity may impose additional specific award conditions as needed, in accordance with paragraphs (b) and (c) of this section, under the following circumstances:

1) Based on the criteria set forth in §200.205 Federal awarding agency review of risk posed by applicants;

2) When an applicant or recipient has a history of failure to comply with the general or specific terms and conditions of a federal award;

3) When an applicant or recipient fails to meet expected performance goals as described in

§200.210 Information contained in a federal award; or

4) When an applicant or recipient is not otherwise responsible.

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B. These additional Federal award conditions may include items such as the following:

1) Requiring payments as reimbursements rather than advance payments;

2) Withholding authority to proceed to the next phase until receipt of evidence of acceptable performance within a given period of performance;

3) Requiring additional, more detailed financial reports;

4) Requiring additional project monitoring;

5) Requiring the non-Federal entity to obtain technical or management assistance; or

6) Establishing additional prior approvals.

C. The Federal awarding agency or pass-through entity must notify the applicant or non-Federal entity as to:

1) The nature of the additional requirements;

2) The reason why the additional requirements are being imposed;

3) The nature of the action needed to remove the additional requirement, if applicable;

4) The time allowed for completing the actions if applicable, and

5) The method for requesting reconsideration of the additional requirements imposed.

D. Any specific conditions must be promptly removed once the conditions that prompted them have been corrected.

14. “Subcontractor” shall mean a person, partnership, or company, not in the employ of or owned by the Contractor, who is performing all or part of those services under a separate contract with or on behalf of the Contractor. The terms “subcontractor” and “subcontractors” mean subcontractor(s) in any tier

15. “Subrecipient” shall mean a non-Federal entity that received a subaward from a pass-through entity to carry out part of a Federal program; but does not include an individual that is a beneficiary of such program. A subrecipient may also be a recipient of other Federal awards directly from a federal awarding agency. (2 CFR 200.93)

Characteristics which support the classification of the non-Federal entity as a subrecipient include when the non-Federal entity:

A. Determines who is eligible to receive what Federal assistance;

B. Has its performance measured in relation to whether objectives of a federal program were met;

C. Has responsibility for programmatic decision making;

D. Is responsible for adherence to applicable Federal program requirements specified in the

Federal award; and E. In accordance with its contract, uses the Federal funds to carry out a program for a public purpose specified in authorizing statute, as opposed to providing goods or services for the benefit of a pass-through entity.

16. “Successor” shall mean any entity which, through amalgamation, consolidation, or other legal succession becomes invested with rights and assumes burdens of the first Contractor/Vendor.

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II. GENERAL CONDITIONS

1. ACCESS TO DATA – In compliance with chapter 39.26 RCW, the Contractor shall provide access to data generated under this contract to DOH, the Joint Legislative Audit and Review

Committee, and the State Auditor at no additional cost. This includes access to all information that supports the findings, conclusions, and recommendations of the Contractor’s reports, including computer models and methodology for those models. The Contractor agrees to make personal information covered under this contract available to DOH for inspection or to amend the personal information, as directed by DOH. Contractor shall, as directed by DOH, incorporate any amendments to the personal information into all copies of such personal information maintained by the Contractor or its subcontractors.

2. ADVANCE PAYMENTS PROHIBITED – No payment in advance or in anticipation of services or supplies to be provided under this contract shall be made by DOH.

3. AMENDMENTS – This contract may be amended by mutual written contract of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties.

4. AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as the “ADA” 28 CFR Part 35 – The Contractor must comply with the ADA, which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, State and local government services, and telecommunications.

5. ASSIGNABILITY – Neither this contract nor any claim arising under this contract shall be transferred or assigned by the Contractor without prior written consent of DOH.

6. ATTORNEYS’ FEES – In the event of litigation or other action brought to enforce contract terms, each party agrees to bear its own attorney’s fees and costs.

7. CHANGE IN STATUS - In the event of substantive change in the legal status, organizational structure, or fiscal reporting responsibility of the Contractor, Contractor agrees to notify DOH of the change. Contractor shall provide notice as soon as practicable, but no later than thirty days after such a change takes effect.

8. CONFIDENTIALITY/SAFEGUARDING OF INFORMATION – The use or disclosure by any party, either verbally or in writing, of any Confidential Information shall be subject to Chapter

42.56 RCW and Chapter 70.02 RCW, as well as other applicable Federal and State laws and administrative rules governing confidentiality. Specifically, the Contractor agrees to limit access to

Confidential Information to the minimum amount of information necessary, to the fewest number of people, for the least amount of time required to do the work. The obligations set forth in this clause shall survive completion, cancellation, expiration, or termination of this contract.

A. Notification of Confidentiality Breach

Upon a breach or suspected breach of confidentiality, the Contractor shall immediately notify the DOH Chief Information Security Officer at security@doh.wa.gov. For the purposes of this contract, “immediately” shall mean within one business day.

mailto:security@doh.wa.gov

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The Contractor will take steps necessary to mitigate any known harmful effects of such unauthorized access including, but not limited to sanctioning employees, notifying subjects, and taking steps necessary to stop further unauthorized access. The Contractor agrees to indemnify and hold harmless DOH for any damages related to unauthorized use or disclosure by the Contractor, its officers, directors, employees, subcontractors, or agents.

Any breach of this clause may result in termination of the contract and the demand for return of all Information.

B. Subsequent Disclosure

The Contractor will not release, divulge, publish, transfer, sell, disclose, or otherwise make the

Confidential Information known to any other entity or person without the express prior written consent of the Secretary of Health, or as required by law.

If responding to public record disclosure requests under RCW 42.56, the Contractor agrees to notify and discuss with the DOH Chief Information Security Officer requests for all information that are part of this contract, prior to disclosing the information. The Contractor further agrees to provide DOH a minimum of two calendar weeks to initiate legal action to secure a protective order under RCW 42.56.540.

9. CONFLICT OF INTEREST – Notwithstanding any determination by the Executive Ethics Board or other tribunal, DOH may, in its sole discretion, by written notice to the Contractor, terminate this contract if it is found, after due notice and examination by DOH that there is a violation of the ethics in public service act, chapter 42.52 RCW, or any similar statute involving the Contractor in the procurement of, or performance of this contract.

In the event this contract is terminated as provided above, DOH shall be entitled to pursue the same remedies against the Contractor as it could pursue in the event of a breach of the contract by the

Contractor. The rights and remedies of DOH provided for in this section shall not be exclusive are in addition to any other rights and remedies provided by law. The existence of facts upon which

DOH makes a determination under this section shall be an issue and may be reviewed as provided in the “disputes” section of this contract.

10. COVENANT AGAINST CONTINGENT FEES – The Contractor warrants that no person or selling agent has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established agents maintained by the Contractor for the purpose of securing business. DOH shall have the right, in the event of breach of this clause by the Contractor, to annul this contract without liability, or in its discretion, to deduct from the contract price or consideration or recover by other means the full amount of such commission, percentage, brokerage or contingent fee.

11. DEBARMENT – The Contractor, by signature to this contract, certifies that the Contractor is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded in any Federal department or agency from participating in transactions. The Contractor agrees to include the above requirement in all subcontracts into which it enters to complete this contract.

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12. DISPUTES – The parties shall use their best, good faith efforts to cooperatively resolve disputes and problems that arise in connection with this contract. Both parties will continue without delay to carry out their respective responsibilities under this contract while attempting to resolve the dispute under this section. When a genuine dispute arises between DOH and the Contractor regarding the terms of this agreement or the responsibilities imposed herein which cannot be resolved, either party may submit a request for non-binding mediation to the other party through the DOH Contracts Unit and the DOH Contracts Unit will notify the other party of the request for non-binding mediation. DOH Contracts will act as the initial coordination point and manage the non-binding mediation communication to and from the parties.

Each party agrees that the DOH will identify three mediators who are neutral to both parties. Each party agrees that Contractor will identify one of the three mediators to engage in this process. Each party agrees that it will be responsible for one-half (1/2) the cost of the mediator. Each party agrees that the non-binding mediation will occur at a time and place convenient to all parties, including the mediator and that preference is for the mediation to occur in Olympia or Tumwater, Washington. Each party agrees the mediation is non-binding.

A party’s request for a non-binding mediation must:

• Be in writing,

• Clearly state the disputed issues,

• State the relative positions of the parties, state the Contractor’s name, address, and his/her contact number, the DOH Program Contract Manager.

• Be mailed to ATTN: DOH Contracts and Procurement Director, P.O. Box 47905, Olympia, WA 98504-7905 within 30-day (30) calendar days after the party could have reasonably been expected to have knowledge of the issue which he/she now disputes, or

• Be emailed to DOHCon.Mgmt@doh.wa.gov with the subject line clearly displaying the contract number and the word “DISPUTE.”

The non-binding mediation process constitutes the sole administrative remedy available under this contract. The parties agree that this resolution process shall precede any action in a judicial and quasi-judicial tribunal. Both parties have a duty and responsibility to timely pursue and engage in non-binding mediation. However, the requesting party may pursue judicial or quasi-judicial action prior to the completion of non-binding mediation if the subject party unnecessarily delays or intentionally frustrates the mediation process.

13. EFFECTIVE DATE – Unless otherwise specified under period of performance, the effective date of this contract and subsequent amendments, if any, is the date of execution. The date of execution is the last date of signature of the parties to the contract. Contractor assumes all liability for any expenses incurred prior to the date of execution or in the event the contract/amendment is not executed.

14. EXECUTIVE ORDER 18-03 – WORKERS’ RIGHTS (MANDATORY INDIVIDUAL

ARBITRATION). [If Applicable] Contractor represents and warrants, as previously certified in Contractor’s bid submission, that Contractor does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. Contractor further represents and warrants that, during the term of this Contract, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

mailto:DOHCon.Mgmt@doh.wa.gov

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15. EXECUTIVE ORDER 22-01 – EQUITY IN PUBLIC CONTRACTING.

Washington Small Business [If Applicable]. Contractor represents and warrants, as previously certified in Contractor’s Bidder Certification, that Contractor qualifies as a Washington Small

Business pursuant to RCW 39.26.010.

Certified Veteran-Owned Business [If Applicable]. Contractor represents and warrants, as previously certified in Contractor’s Bidder Certification, that Contractor qualifies as a Certified

Veteran-Owned Business pursuant to RCW 43.60A.190.

16. GOVERNING LAW – This contract shall be governed by the laws of the State of Washington and applicable federal laws and regulations. The venue of any legal action or suit concerning this contract shall be the Thurston County Superior Court and all actions or suits thereon shall be brought therein.

17. INDEMNIFICATION – To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless the State of Washington, DOH, agencies of the State and all officials, and employees of the State, from and against all claims arising out of or resulting from the performance of the contract. “Claim” as used in this contract means any financial loss, claim, suit, action, damage, or expense, including but not limited to attorney’s fees, attributable for bodily injury, sickness, disease or death, or injury to or destruction of tangible property including loss of use resulting therefrom. Contractor's obligation to indemnify, defend, and hold harmless includes any claim by Contractors’ agents, employees, representatives, or any subcontractor or its employees.

Contractor expressly agrees to indemnify, defend, and hold harmless the State for any claim arising out of or incident to Contractor’s or any subcontractor’s performance or failure to perform the contract. Contractor’s obligation to indemnify, defend, and hold harmless the State shall not be eliminated or reduced by any actual or alleged concurrent negligence of State or its agencies, employees and officials.

Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and hold harmless State and its agencies, officials, agents or employees.

18. INDEPENDENT CAPACITY OF THE CONTRACTOR – The parties intend that an independent contractor relationship will be created by this contract. The Contractor and his or her employees or agents performing under the contract are not employees of DOH. The contractor shall not hold himself/herself out as nor claim to be an officer or employee of DOH or of the State of

Washington by reason hereof, nor will the Contractor make any claim of right, privilege or benefit which would accrue to such employee under law. Conduct and control of the work will be solely with the Contractor.

19. INDUSTRIAL INSURANCE COVERAGE – The Contractor shall comply with the provisions of Title 51 RCW, Industrial Insurance. Prior to performing work under this contract, the Contractor shall provide or purchase industrial insurance coverage for the Contractor’s employees, as may be required of an “employer” as defined in Title 51 RCW, and shall maintain full compliance with

Title 51 RCW during the course of this contract. If the Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, DOH may collect from the Contractor the full amount payable to the Industrial

Insurance accident fund. DOH may deduct the amount owed by the Contractor to the accident fund

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1/1/24 from the amount payable to the Contractor by DOH under this contract, and transmit the deducted amount to the Department of Labor and Industries, Division of Insurance Services. This provision does not waive any of the Department of Labor and Industries rights to collect from the Contractor.

Industrial insurance coverage through the Department of Labor & Industries is optional for sole proprietors, partners, corporate officers, and others, per RCW 51.12.020.

20. INSURANCE – The Contractor shall provide insurance coverage as set out in this section. The intent of the required insurance is to protect the State should there be any claims, suits, actions, costs, damages or expenses arising from any negligent or intentional act or omission of the Contractor or subcontractor, or agents of either, while performing under the terms of this contract.

The Contractor shall provide insurance coverage which shall be maintained in full force and effect during the term of this Contract, as follows:

A. Commercial General Liability Insurance Policy - Provide a commercial general liability insurance policy, including contractual liability, in adequate quantity to protect against legal liability arising out of contract activity but no less than $1,000,000 per occurrence.

Additionally, the Contractor is responsible for ensuring that any subcontractors provide adequate insurance coverage for the activities arising out of subcontracts.

B. Automobile Liability - In the event that services delivered pursuant to this contract involve the use of vehicles, either owned or unowned by the Contractor, automobile liability insurance shall be required. The minimum limit for automobile liability is:

1) $1,000,000 per occurrence, using a combined single limit for bodily injury and property damage

C. The insurance required shall be issued by an insurance company/ies authorized to do business within the State of Washington, and shall name the State of Washington, and its employees as additional insureds under the insurance policy/ies. All policies shall be primary to any other valid and collectable insurance. Contractor shall instruct the insurers to give DOH 30 days advance notice of any insurance cancellation.

Upon request, Contractor shall submit to DOH, a certificate of insurance which outlines the coverage and limits defined in the Insurance section. If a certificate of insurance is requested, Contractor shall submit renewal certificates as appropriate during the term of the contract.

21. LICENSING, ACCREDITATION AND REGISTRATION – The Contractor shall comply with all applicable local, State, and Federal licensing, accreditation and registration requirements/ standards, necessary for the performance of this contract.

22. LIMITATION OF AUTHORITY – Only the Contracting Officer or his/her delegate by writing

(delegation to be made prior to action) shall have the express, implied, or apparent authority to alter, amend, modify, or waive any clause or condition of this contract on behalf of DOH. No alteration, modification, or waiver of any clause or condition of this contract is effective or binding unless made in writing and signed by the Contracting Officer.

23. NONDISCRIMINATION –

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A. Nondiscrimination Requirement. During the term of this Contract, Contractor, including any subcontractor, shall not discriminate on the bases enumerated at RCW 49.60.530(3). In addition, Contractor, including any subcontractor, shall give written notice of this nondiscrimination requirement to any labor organizations with which Contractor, or subcontractor, has a collective bargaining or other agreement.

B. Obligation to Cooperate. Contractor, including any subcontractor, shall cooperate and comply with any Washington state agency investigation regarding any allegation that

Contractor, including any subcontractor, has engaged in discrimination prohibited by this

Contract pursuant to RCW 49.60.530(3).

C. Default. Notwithstanding any provision to the contrary, DOH may suspend Contractor, including any subcontractor, upon notice of a failure to participate and cooperate with any state agency investigation into alleged discrimination prohibited by this Contract, pursuant to RCW 49.60.530(3). Any such suspension will remain in place until DOH receives notification that Contractor, including any subcontractor, is cooperating with the investigating state agency. In the event Contractor, or subcontractor, is determined to have engaged in discrimination identified at RCW 49.60.530(3), DOH may terminate this Contract in whole or in part, and Contractor, subcontractor, or both, may be referred for debarment as provided in RCW 39.26.200. The contractor or subcontractor may be given a reasonable time in which to cure this noncompliance, including implementing conditions consistent with any court-ordered injunctive relief or settlement agreement.

D. Remedies for Breach. Notwithstanding any provision to the contrary, in the event of

Contract termination or suspension for engaging in discrimination, Contractor, subcontractor, or both, shall be liable for contract damages as authorized by law including, but not limited to, any cost difference between the original contract and the replacement or cover contract and all administrative costs directly related to the replacement contract, which damages are distinct from any penalties imposed under Chapter 49.60, RCW. DOH shall have the right to deduct from any monies due to Contractor or subcontractor, or that thereafter become due, an amount for damages Contractor or subcontractor will owe DOH for default under this provision.

24. MATERIAL BREACH – Contract may be terminated for cause by DOH, at the sole discretion of the Contract Administrator, for failing to perform a contractual requirement or for a material breach of any term or condition. Material breach of a term or condition of the Contract may include but is not limited to:

A. Contractor failure to perform services or deliver materials, supplies, or equipment by the date required or by an alternate date as mutually agreed in a written amendment to the Contract;

B. Contractor failure to carry out any warranty or fails to perform or comply with any mandatory provision of the contract;

C. Contractor becomes insolvent or in an unsound financial condition so as to endanger performance hereunder;

D. Contractor becomes the subject of any proceeding under any law relating to bankruptcy, insolvency or reorganization, or relief from creditors and/or debtors that endangers the

Contractor’s proper performance hereunder;

E. Appointment of any receiver, trustee, or similar official for Contractor or any of the Contractor’s property and such appointment endangers the Contractor’s proper performance hereunder;

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F. A determination that the Contractor is in violation of federal, state, or local laws or regulations and that such determination renders the Contractor unable to perform any aspect of the Contract.

25. NONDISCRIMINATION –

A. Nondiscrimination Requirement. During the term of this Contract, Contractor, including any subcontractor, shall not discriminate on the bases enumerated at RCW 49.60.530(3). In addition, Contractor, including any subcontractor, shall give written notice of this nondiscrimination requirement to any labor organizations with which Contractor, or subcontractor, has a collective bargaining or other agreement.

B. Obligation to Cooperate. Contractor, including any subcontractor, shall cooperate and comply with any Washington state agency investigation regarding any allegation that Contractor, including any subcontractor, has engaged in discrimination prohibited by this Contract pursuant to RCW 49.60.530(3).

C. Default. Notwithstanding any provision to the contrary, DOH may suspend Contractor, including any subcontractor, upon notice of a failure to participate and cooperate with any state agency investigation into alleged discrimination prohibited by this Contract, pursuant to

RCW 49.60.530(3). Any such suspension will remain in place until DOH receives notification that Contractor, including any subcontractor, is cooperating with the investigating state agency.

In the event Contractor, or subcontractor, is determined to have engaged in discrimination identified at RCW 49.60.530(3), DOH may terminate this Contract in whole or in part, and

Contractor, subcontractor, or both, may be referred for debarment as provided in

RCW 39.26.200. The contractor or subcontractor may be given a reasonable time in which to cure this noncompliance, including implementing conditions consistent with any court-ordered injunctive relief or settlement agreement.

D. Remedies for Breach. Notwithstanding any provision to the contrary, in the event of Contract termination or suspension for engaging in discrimination, Contractor, subcontractor, or both, shall be liable for contract damages as authorized by law including, but not limited to, any cost difference between the original contract and the replacement or cover contract and all administrative costs directly related to the replacement contract, which damages are distinct from any penalties imposed under Chapter 49.60, RCW. DOH shall have the right to deduct from any monies due to Contractor or subcontractor, or that thereafter become due, an amount for damages Contractor or subcontractor will owe DOH for default under this provision.

26. OPPORTUNITY TO CURE – In the event Contractor fails to perform a contractual requirement or materially breaches any term or condition, DOH may issue a written cure notice.

The Contractor may have a period of time in which to cure. DOH is not required to allow the Contractor to cure defects if the opportunity for cure is not feasible as determined solely within the discretion of DOH. Time allowed for cure shall not diminish or eliminate Contractor's liability for liquidated or other damages, or otherwise affect any other remedies available against

Contractor under the contract or by law.

If the breach remains after Contractor has been provided the opportunity to cure, DOH may do any one or more of the following:

a) Exercise any remedy provided by law;

b) Terminate this contract and any related contracts or portions thereof;

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c) Procure replacements and impose damages as set forth elsewhere in this contract;

d) Impose actual or liquidated damages;

e) Request that DES suspend or bar Contractor from receiving future solicitations or other opportunities;

f) Require Contractor to reimburse the state for any loss or additional expense incurred as a result of default or failure to satisfactorily perform the terms of the contract.

27. OVERPAYMENTS AND ASSERTION OF LIEN – In the event that DOH establishes overpayments or erroneous payments made to the Contractor under this contract, DOH may secure repayment, plus interest, if any, through the filing of a lien against the Contractor's real property, or by requiring the posting of a bond, assignment or deposit, or some other form of security acceptable to DOH, or by doing both.

28. PRIVACY – Personal information including, but not limited to “protected health information” collected, used, or acquired in connection with this contract shall be used solely for the purposes of this contract. Contractor and its subcontractors agree not to release, divulge, publish, transfer, sell or otherwise make known to unauthorized persons personal information without the express written consent of DOH or as provided by law. Contractor agrees to implement physical, electronic and managerial safeguards to prevent unauthorized access to personal information.

DOH reserves the right to monitor, audit, or investigate the use of personal information collected, used, or acquired by the contractor through this contract. The monitoring, auditing, or investigating may include but is not limited to “salting” by DOH. Contractor shall certify the return or destruction of all personal information upon expiration of this contract. Salting is the act of placing a record containing unique but false information in a database that can be used later to identify inappropriate disclosure of data contained in the database.

Any breach of this provision may result in termination of the contract and the demand for return of all personal information. The Contractor agrees to indemnify and hold harmless DOH for any damages related to the Contractor's unauthorized use of personal information.

For the purposes of this provision, personal information includes but is not limited to information identifiable to an individual that relates to a natural person's health, finances, education, business, use or receipt of governmental services, or other activities, names, addresses, telephone numbers, social security numbers, driver license numbers, financial profiles, credit card numbers, financial identifiers, and other identifying numbers.

29. PUBLICITY – The Contractor agrees to submit to DOH all advertising and publicity matters relating to this contract wherein DOH’s name is mentioned or language used from which the connection of DOH’s name may, in DOH's judgment, be inferred or implied. The Contractor agrees not to publish or use such advertising and publicity matters without the prior written consent of

DOH.

30. RECORDS, DOCUMENTS, AND REPORTS –The Contractor shall maintain books, records, documents, data, and other evidence relating to this contract and performance of the services described herein, including but not limited to accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this contract. Contractor shall retain such records for a period of six (6) years following the date of final payment. At no additional cost, these records, including materials

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1/1/24 generated under the contract, shall be subject at all reasonable times to inspection, review, or audit by DOH, personnel duly authorized by DOH, the Office of the State Auditor, and Federal and State officials so authorized by law, regulation or agreement.

If the contract reimburses the Contractor for costs incurred in performance, the Contractor shall in addition maintain books, records, documents and other evidence of procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this contract.

If any litigation, claim, or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been resolved.

31. REGISTRATION WITH DEPARTMENT OF REVENUE – The Contractor shall complete registration with the Washington State Department of Revenue, if applicable, and be responsible for payment of all taxes due on payments made under this contract.

32. REMEDIES – If Contractor is in breach under any provision of this Contract, DOH shall have all of the remedies listed in this section in addition to all other remedies set forth in other sections of this Contract following the notice and cure period set forth. DOH in its sole discretion, may exercise any or all of the remedies available to it, concurrently or consecutively, including one or more of the following remedies:

A. Suspend Performance – Suspend Contractor’s performance with respect to all or any portion of this Contract pending necessary corrective action as specified by the State without entitling Contractor to an adjustment in price/cost or performance schedule. Contractor shall promptly cease performance and incurring costs in accordance with the State’s directive and the State shall not be liable for costs incurred by Contractor after the suspension of performance under this provision.

B. Withhold Payment – Withhold payment to Contractor until corrections in Contractor’s performance are satisfactorily made and completed.

C. Deny Payment – Deny payment for those obligations not performed, that due to Contractor’s actions or inactions, cannot be performed or, if performed, would be of no value to the State;

provided, that any denial of payment shall be reasonably related to the value to the State of the obligations not performed.

D. Removal – Notwithstanding any other provision herein, the State may demand immediate removal of any of Contractor’s employees, agents, or Subcontractors whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued relation to this Contract is deemed to be contrary to the public interest or the

State’s best interest.

33. RIGHT OF INSPECTION – The Contractor shall provide right of access to its facilities to DOH, or any of its officers, or to any other authorized employee or official of the State of Washington or the federal government, at all reasonable times, in order to monitor and evaluate performance, compliance, and/or quality assurance under this contract. The Contractor shall make available information necessary for DOH to comply with the client's right to access, amend, and receive an

DOH RFXX#24-XXXC Page 13 of 18

1/1/24 accounting of disclosures of their Personal Information according to the Health Insurance

Portability and Accountability Act of 1996 (HIPAA) or any regulations enacted or revised pursuant to the HIPAA provisions and applicable provisions of Washington State law. The Contractor’s internal policies and procedures, books, and records relating to the safeguarding, use, and disclosure of personal information obtained or used as a result of this contract shall be made available to DOH and the U.S. Secretary of the Department of Health & Human Services, upon request.

34. RIGHTS IN DATA/COPYRIGHT – Unless otherwise provided, all materials produced exclusively under this contract shall be considered “works for hire” as defined by the U.S.

Copyright Act and shall be owned by DOH. DOH shall be considered the author of such Materials.

In the event the Materials are not considered “works for hire” under the U.S. Copyright laws, Contractor hereby irrevocably assigns all right, title, and interest in Materials, including all intellectual property rights, to DOH effective from the moment of creation of such materials.

Materials means all items in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions that derive exclusively from the Contractor’s work under this contract.

Ownership includes the right to copyright, patent, register and the ability to transfer these rights.

For materials that are delivered under the contract, but that incorporate pre-existing materials not produced under the contract, Contractor hereby grants to DOH a nonexclusive, royalty-free, irrevocable license (with rights to sublicense others) in such materials to translate, reproduce, distribute, prepare derivative works, publicly perform, and publicly display. The Contractor warrants and represents that Contractor has all rights and permissions, including intellectual property rights, moral rights, and rights of publicity, necessary to grant such a license to DOH.

The Contractor shall exert all reasonable effort to advise DOH, at the time of delivery of materials furnished under this contract, of all known or potential invasions of privacy contained therein and of any portion of such document which was not produced in the performance of this contract. DOH shall receive prompt written notice of each notice or claim of copyright infringement received by the Contractor with respect to any data delivered under this contract. DOH shall have the right to modify or remove any restrictive markings placed upon the data by the Contractor.

35. SECURITY OF INFORMATION – Unless otherwise specifically authorized by the DOH Chief

Information Security Officer, Contractor receiving confidential information under this contract assures that:

• Encryption is selected and applied using industry standard algorithms validated by the

National Institute of Standards and Technology (NIST) Cryptographic Algorithm Validation Program against all information stored locally and off-site. Information must be encrypted both in-transit and at rest and applied in such a way that it renders data unusable to anyone but authorized personnel, and the confidential process, encryption key or other means to decipher the information is protected from unauthorized access.

• It is compliant with the applicable provisions of the Washington State Office of the Chief

Information Officer (OCIO) policy 141, Securing Information Technology Assets, available at: https://ocio.wa.gov/policy/securing-information-technology-assets.

• It will provide DOH copies of its IT security policies, practices, and procedures upon the request of the DOH Chief Information Security Officer.

• DOH may at any time conduct an audit of the Contractor’s security practices and/or infrastructure to assure compliance with the security requirements of this contract.

https://ocio.wa.gov/policy/securing-information-technology-assets

DOH RFXX#24-XXXC Page 14 of 18

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• It has implemented physical, electronic, and administrative safeguards that are consistent with OCIO security standard 141.10 and ISB IT guidelines to prevent unauthorized access, use, modification or disclosure of DOH Confidential Information in any form. This includes, but is not limited to, restricting access to specifically authorized individuals and services through the use of:

o Documented access authorization and change control procedures;

o Card key systems that restrict, monitor and log access;

o Locked racks for the storage of servers that contain Confidential Information or use

AES encryption (key lengths of 256 bits or greater) to protect confidential data at rest, standard algorithms validated by the National Institute of Standards and Technology

(NIST) Cryptographic Algorithm Validation Program (CMVP);

o Documented patch management practices that assure all network systems are running critical security updates within 6 days of release when the exploit is in the wild, and within 30 days of release for all others;

o Documented anti-virus strategies that assure all systems are running the most current anti-virus signatures within 1 day of release;

o Complex passwords that are systematically enforced and password expiration not to exceed 120 days, dependent user authentication types as defined in OCIO security standards;

o Strong multi-factor authentication mechanisms that assure the identity of individuals who access Confidential Information;

o Account lock-out after 5 failed authentication attempts for a minimum of 15 minutes, or for Confidential Information, until administrator reset;

o AES encryption (using key lengths 128 bits or greater) session for all data transmissions, standard algorithms validated by NIST CMVP;

o Firewall rules and network address translation that isolate database servers from web servers and public networks;

o Regular review of firewall rules and configurations to assure compliance with authorization and change control procedures;

o Log management and intrusion detection/prevention systems;

o A documented and tested incident response plan

Any breach of this clause may result in termination of the contract and the demand for return of all personal information.

36. SEVERABILITY – If any provision of this contract or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this contract which can be given effect without the invalid provision, and to this end the provisions of this contract are declared to be severable.

37. SITE SECURITY – While on DOH premises, Contractor, its agents, employees, or subcontractors shall conform in all respects with physical, fire or other security policies or regulations. Failure to comply with these regulations may be grounds for revoking or suspending security access to these facilities. DOH reserves the right and authority to immediately revoke security access to Contractor staff for any real or threatened breach of this provision. Upon reassignment or termination of any

Contractor staff, Contractor agrees to promptly notify DOH.

38. SUBCONTRACTING – The Contractor is responsible for ensuring that all terms, conditions, assurances, and certifications set forth in this contract are carried forward to any subcontracts, DOH RFXX#24-XXXC Page 15 of 18

1/1/24 including all confidentiality and suspension and debarment requirements. DOH retains the right to review any subcontracts to ensure that the required provisions have been carried forward.

In no event shall the existence of the subcontract, or DOH’s review of it, operate to release or reduce the liability of the Contractor to DOH for any breach in the performance of the

Contractor’s duties. This clause does not apply to Hospitals and/or Medical Clinics that must contract with specialty physicians (e.g. anesthesiologists, radiologists, physicians groups, independent practitioners, etc.) nor does it include contracts of employment between the

Contractor and personnel assigned to work under this contract.

If, at any time during the progress of the work, DOH determines in its sole judgment that any subcontractor’s work is non-conforming to the contract requirements, DOH shall notify the

Contractor, and the Contractor shall take immediate steps to replace the subcontractor and to bring the work into conformance. Any request by DOH to replace a subcontractor for nonconforming work shall not relieve the Contractor of any of its responsibilities under the contract, nor be the basis for additional charges to DOH.

DOH has no contractual obligations to any subcontractor or vendor under contract to the

Contractor. The Contractor is fully responsible for all contractual obligations, financial or otherwise, to their subcontractors.

39. SUBCONTRACTOR PAYMENTS REPORTING REQUIREMENTS: This Contract is subject to compliance tracking using the State’s business diversity management system, Access

Equity (B2Gnow). Access Equity is web-based and can be accessed at the Office of Minority and

Women’s Business Enterprises at https://omwbe.diversitycompliance.com/ The Contractor and all Subcontractors shall report and confirm receipt of payments made to the Contractor and each

Subcontractor through Access Equity. The Contractor may contact https://omwbe.diversitycompliance.com/ for technical assistance in using the Access Equity system. Information related to Contractor and Subcontractor access to, and use of Access Equity will be provided to Contractor and each identified Subcontractor upon execution of this Contract.

The Agency reserves the right to withhold payments from the Contractor for non-compliance with this section. For purposes of this section, Subcontractor means any subcontractor working on the

Contract, at any tier and regardless of status as certified WMBE or Non-WMBE.

The Contractor shall:

a) Register and enter all required Subcontractor information into Access Equity no later than 15 days after the Agency creates the Contract Record.

b) Complete the required user training (two (2) one-hour online sessions) no later than 20 days after the Agency creates the Contract Record.

c) Report the amount and date of all payments (i) received from the Agency, and (ii) paid to

Subcontractors, no later than within 30 days, issuance of each payment made by the Agency to the Contractor, unless otherwise specified in writing by the Agency, except that the Contractor…