ATTACHMENT A - Request for Proposals.pdf

Revised January 2023

ATTACHMENT A

Commonwealth of Kentucky Request for Proposal (RFP)

For Energy Savings Performance Contract Lease Agreement

RFP 785 2300000325

Release Date: March 30, 2023 CLOSING DATE AND TIME: April 27,2023 at 2:00pm ET

Issued by

The Finance and Administration Cabinet

Commonwealth Buyer:

Amanda Greer

Statewide Procurement Analyst II

COMMONWEALTH OF KENTUCKY

FINANCE AND ADMINISTRATION CABINET

Division of Engineering and Contract Administration 403 Wapping Street Frankfort, KY 40601

(502) 330-8159 Amanda.Greer@ky.gov

TABLE OF CONTENTS

Proposal Submission Checklist Section 1 – Summary Section 2 – Introduction Section 3 – Scope of Work Section 4 – Commonwealth Office of Technology Requirements (not applicable) Section 5 – Procurement Requirements and Instructions Section 6 – Proposal Submission Section 7 – Proposal Evaluation Section 8 – Negotiations Section 9 – Contract Requirements Section 10 – Standard Terms and Conditions Section 11 – Attachments

PROPOSAL SUBMISSION CHECKLIST

The vendor MUST include the following with the proposal submission. If the items highlighted below are not submitted with the proposal submission, the Commonwealth MUST deem the proposal non-responsive and SHALL NOT consider for award.

All other items MUST be submitted prior to award.

*PROPOSED TECHNICAL SOLUTION

*PROPOSED COST SOLUTION

TRANSMITTAL LETTER [see Section 6.7(A)]

REVENUE FORM 10A100 KENTUCKY TAX REGISTRATION APPLICATION

(see Section 6.7 (C)]

CERTIFICATE OF AUTHORITY- REGISTRATION WITH SECRETARY OF

STATE BY A FOREIGN ENTITY [see Section 6.7 (D)]

REQUIRED ANNUAL AFFIDAVIT AND OTHER AFFIDAVIT(S)

EEO FORMS IF APPLICABLE [see Section 10.19]

SECTION 1 - RFP SUMMARY

1.1 Estimated Schedule of RFP Activities

The following table presents the anticipated schedule for major activities associated with the RFP distribution, proposal submission, proposal evaluation process, and contract award. The Commonwealth reserves the right at its sole discretion to change the Schedule of Activities, including the associated dates and times.

Anticipated Schedule of Activities

Release of RFP

March 30, 2023

Vendors’ Written Questions due by 3:00 PM ET

(SUBMIT QUESTIONS ON ATTACHMENT C - VENDORS’ QUESTION

FORM)

April 14, 2023

Commonwealth’s Response to 1st Set of Vendors’ Written Questions and Deviations

April 20, 2023

Proposals due by 3:30 PM ET

April 27, 2023

1.2 Issuing Office

The Commonwealth of Kentucky, Finance and Administration Cabinet (FAC), Office of Facility Development and Efficiency, is issuing this RFP on behalf of the Division of Facility Efficiency. The Finance and Administration Cabinet is the only office authorized to change, modify, amend, alter, or clarify the specifications, terms and conditions of this RFP.

A contract, based on this RFP, may or may not be awarded. Any contract award from this RFP is invalid until properly approved and executed by the Finance and Administration Cabinet.

1.3 Agencies to Be Served

This contract shall be for use by the OFFICE OF FACILITY DEVELOPMENT AND EFFICIENCY. This contract is used exclusively for ESPC projects administered by the Division of Facility Efficiency

SECTION 2 - INTRODUCTION –

2.1 Purpose

The purpose of this RFP is to solicit proposals for competitive negotiations pursuant to 200 KAR 5:307. The Office of Facility Development and Efficiency is seeking a lessor to provide Lease Purchase financing for the Commonwealth of Kentucky’s Energy Savings Performance Contracting (ESPC) Program.

2.2 The Commonwealth, its agencies and post-secondary education entities have historically bid individual Energy Savings Performance Contract Lease Purchase Financing on a stand-alone basis. There is expected to be continued awards of Energy Savings Performance Contracts which could create total credit demand of up to $40 million during each calendar year.

(Legal Issues)

1. In Kentucky, there can be no debt or other obligation of the state created except pursuant to Section 50 of the Kentucky constitution. The state courts have recognized the need for state government to finance construction and other projects and have held that lease purchase agreements are a form of financing that does not violate the Kentucky Constitution. See Wilson v. Kentucky Transportation Cabinet, Ky., 884 S.W. 2d 641 (1994).

2. Another issue that often arises concerning lease purchase agreements is the ability of the Commonwealth to indemnify or hold harmless, the Lessor, for any reason. Together, these two (2) sections have been held to prohibit indemnification or hold harmless by the Commonwealth. See OAG 86-18 and

OAG 84-55.

SECTION 3 – SCOPE OF WORK

PROPOSALS THAT DO NOT MEET MANDATORY REQUIREMENTS WILL BE

DEEMED NON-RESPONSIVE AND WILL NOT BE CONSIDERED.

Mandatory Requirement means a condition set out in the specifications or statement of work that must be met without exception.”

3.1 The planned scope of work for the ESPC Lessor shall include but is not limited to the following:

- responsible for direct program marketing to user agencies;

- development or modification of required standard forms and documentation;

- primary contact with user agencies and their budget offices;

- execution of all required documentation to effectuate the Lease Purchase;

preparation of periodic summary reports of leases outstanding by Cabinet and other reasonably required reports as requested by DECA.

Energy Savings Performance Contracts

• The Commonwealth, its agencies and post-secondary education may use this Contract to fund Energy Savings Performance Contracts administered by Division of Facility Efficiency and designed and implemented by third-party vendors under guaranteed energy savings performance contracts as defined in KRS Chapter 56. The third-party vendor would not be party to the Contract but would be required to make payments to the state in the event that energy savings did not meet the contractual amount. Because energy savings are the source for repayment, the Commonwealth cannot make payments for these projects until the project is complete or a phase of a project becomes operational.

The Commonwealth desires to lock in interest rates for each project at the earliest opportunity to determine financing costs related to the contractual guaranteed savings amount.

• The Lessor will have the right/obligation to fund ESPC projects for a minimum of two years. An exception may be made when there are funds available for the KY Green Bank revolving loan fund.

• The majority of the energy conservation projects will involve real property.

The Commonwealth shall own the equipment at the end of the lease term or at such time when the lease has been paid in full.

• ESCOs will be required to provide a payment and performance bond for each project naming the Lessor as dual-obligee.

Lease Purchase Agreement

The current Master Lease Purchase Agreement as amended, and the terms and conditions outlined in the accompanying agreement is the basic framework that the Commonwealth of Kentucky chooses to retain. This is the standard by which your firm shall be evaluated with respect to the agreement and documentation.

The Commonwealth will consider other agreements provided the agreement and documentation comply with all statutory and regulatory provisions. A copy of the current Master Lease is included as Attachment F.

SECTION 4 – COMMONWEALTH OFFICE OF TECHNOLOGY (COT)

REQUIREMENTS

Not applicable

SECTION 5 – PROCUREMENT REQUIREMENTS AND INSTRUCTIONS

5.1 Procurement Requirements

Procurement requirements are listed under “Procurement Laws, Preference, Regulations and Policies” and “Response to Solicitation” located on the eProcurement Web page. The vendor must comply with all applicable statutes, regulations and policies related to this procurement.

5.2 Access to Solicitation, RFP, and Addenda

The Commonwealth wants each prospective vendor to have full and complete information on which to base a proposal response. Only information presented or referred to in this RFP and any additional written information that is supplied by the Commonwealth Buyer shall be used by vendors in preparing the response.

The solicitation, addenda, and attachments shall be posted to the Kentucky Vendor Self Service

It is not necessary to register to access the solicitation. Unregistered vendors can access solicitations by clicking on public access.

In the event of any conflict or variation between the solicitation or modification as issued by the Commonwealth and the vendor’s response, the version as issued shall prevail.

5.3 RFP Terminology

For the purpose of this RFP, the following terms may be used interchangeably:

o Proposer, Offeror, Contractor, Provider, Lessor or Vendor o Commonwealth Buyer, Buyer, Purchaser, or Contract Officer o RFP, Solicitation, or Procurement o Bid, Proposal, or Offer o Commonwealth of Kentucky, Commonwealth, State, Agency, Office of Facility

Development and Efficiency, Division of Engineering and Contract Administration (DECA) o Fiscal Year will be defined as the Commonwealth fiscal year: July 1 through June 30 o Biennium will be defined as the Commonwealth biennium: July 1 of each even numbered year through June 30 of the next even numbered year o Requirements that include the words “Shall”, “Will”, “Must” indicate a mandatory requirement o Mandatory Requirement means a condition set out in the specifications or statement of work that must be met without exception.”

5.4 Restrictions on Communications

The Commonwealth Buyer named on the Cover Sheet of this RFP shall be the sole point of contact throughout the procurement process. All communications, oral and written (regular, express, or electronic mail,), concerning this procurement shall be addressed to the Buyer.

https://finance.ky.gov/eProcurement/Pages/procurement-laws-regulations-and-policies.aspx https://finance.ky.gov/eProcurement/Pages/procurement-laws-regulations-and-policies.aspx https://finance.ky.gov/eProcurement/Pages/doing-business-with-the-commonwealth.aspx https://vss.ky.gov/

For violation of this provision, the Commonwealth shall reserve the right to disqualify the vendors’ proposal response.

5.5 Confidentiality of Contract Terms

The contractor and the Commonwealth agree that all information communicated between them before the effective date of the contract shall be received in strict confidence and shall not be necessarily disclosed by the receiving party, its agents, or employees without prior written consent of the other party. Such material will be kept confidential subject to Commonwealth and Federal public information disclosure laws.

Upon signing of the contract by all parties, terms of the contract become available to the public, pursuant to the provisions of the Kentucky Revised Statutes.

The contractor shall have an appropriate agreement with its subcontractors extending these confidentiality requirements to all subcontractors’ employees.

5.6 Written Questions Regarding this RFP

Vendors are encouraged to submit written questions pursuant to Section 1.1 of this RFP. Written questions shall be submitted to the Commonwealth Buyer via email at Amanda.Greer@ky.gov. Vendors should submit questions on Attachment C - Vendors Question Form. No questions shall be accepted after the date(s) listed in Section 1.1 unless the question(s) is considered material to the procurement. The Commonwealth shall respond to salient questions in writing by issuing an addendum to the solicitation. The addendum shall be posted to the Kentucky Vendor Self Service site.

5.7 Vendor Response and Proprietary Information

The RFP specifies the format, required information, and general content of proposals submitted in response to the RFP. The Finance and Administration Cabinet will not disclose any portions of the proposals prior to Contract Award to anyone outside the Finance and Administration Cabinet, representatives of the agency for whose benefit the contract is proposed, representatives of the Federal Government, if required, and the members of the evaluation committees. After a contract is awarded in whole or in part, the Commonwealth shall have the right to duplicate, use, or disclose all proposal data submitted by vendors in response to this RFP as a matter of public record.

Although the Commonwealth recognizes the vendor's possible interest in preserving selected data which may be part of a proposal, the Commonwealth must treat such information as provided by the Kentucky Open Records Act, KRS

61.870 et sequitur.

Informational areas which normally might be considered proprietary shall be limited to individual personnel data, customer references, selected financial data, formulae, and financial audits which, if disclosed, would permit an unfair advantage to competitors. If a proposal contains information in these areas that a vendor declares proprietary in nature and not available for public disclosure, the vendor should declare in the Transmittal Letter [see Section 6.7 (A)] the inclusion of proprietary information and shall noticeably label as proprietary each file containing such information. Proprietary information shall be submitted separately and identified as “Proprietary Data”. Proposals containing information declared by the vendor to be proprietary, either in whole or in part, outside the areas listed above may be deemed non-responsive to the RFP and may be rejected.

5.8 Notification of Award of Contract

The procurement process will provide for the evaluation of proposals and selection of the successful proposal in accordance with State law and regulations. KRS Chapter 45A of the Kentucky Model Procurement Code provides the regulatory framework for the procurement of services by State agencies.

All applicable statutes, regulations, policies and requirements shall become a part of an award as well as the Information Technology requirements.

For additional award information, vendors may email the Commonwealth Buyer.

5.9 Protest

Pursuant to KRS 45A.285, the Secretary of the Finance and Administration Cabinet, or his designee, shall have authority to determine protests and other controversies of actual or prospective offerors in connection with the solicitations or selection for award of a contract.

Any actual or prospective offeror or contractor, who is aggrieved in connection with solicitation or selection for award of a contract, may a file protest with the Secretary of the Finance and Administration Cabinet. A protest or notice of other controversy must be filed promptly and in any event within two (2) calendar weeks after such aggrieved person knows or should have known of the facts giving rise thereto. All protests or notices of other controversies must be in writing and shall be addressed and mailed to:

Holly M. Johnson, Secretary

COMMONWEALTH OF KENTUCKY

FINANCE AND ADMINISTRATION CABINET

200 MERO STREET, 5TH FLOOR

FRANKFORT, KY 40622

The Secretary of Finance and Administration Cabinet shall promptly issue a decision in writing. A copy of that decision shall be mailed or otherwise furnished to the aggrieved party and shall state the reasons for the action taken.

The decision by the Secretary of the Finance and Administration Cabinet shall be final and conclusive.

5.10 Vendor Notification – Ineligible for Award

The Commonwealth will not consider or evaluate any proposal submitted by a vendor when the vendor, the vendor’s employees or agents, had any involvement, contribution or participation in the development, preparation or review of this RFP prior to its issuance. The vendors proposal will be deemed ineligible for award.

5.11 Past Vendor Performance

Past vendor performance may be considered in the award of this Contract.

Vendors with a record of poor performance in the last twelve (12) months may be found non-responsible and ineligible for award.

SECTION 6 – PROPOSAL SUBMISSION

6.1 Disposition of Proposals

All proposals become the property of the Commonwealth of Kentucky. The successful proposal shall be incorporated into the resulting contract by reference.

Disposal of unsuccessful proposals shall be at the discretion of the Commonwealth Buyer.

6.2 Rules for Withdrawal of Proposals

Prior to the date specified for receipt of offers, a submitted proposal may be withdrawn by electronic or written notice by submitting a signed written request for its withdrawal to the Commonwealth Buyer.

6.3 Commonwealth’s Right to Use Proposal Ideas

The Commonwealth of Kentucky shall have the right to use all system ideas, or adaptations of those ideas, contained in any proposals received in response to the RFP. Selection or rejection of the proposal will not affect this right.

6.4 Submission of RFP Response

Each qualified offeror shall submit only one (1) proposal. Alternate proposals shall not be allowed. Failure to submit as specified shall result in a non-responsive proposal.

Acknowledgment of Addenda It is the vendor's responsibility to check the web site for any modifications to this solicitation.

Failure to specifically acknowledge addenda with submission will not excuse the vendor from adhering to all changes to the requirements of the solicitation set forth therein nor provide justification for any pricing changes.

6.5 Electronic Proposal Submission

Proposals shall be received by electronic submission in the eProcurement system.

An electronic proposal shall be authorized by the proper agent of the firm by the act of submitting it electronically through the eProcurement system.

Proposal information MUST be completed online. Response must contain all required information for the Solicitation. All bidders MUST be registered in the Commonwealth eProcurement System via the Vendor Self Service System at https://vss.ky.gov

Allow 24 – 48 hours to complete Vendor Registration. Vendors must be logged in to their Vendor Self Service (VSS) account in order to submit a response.

Registrations completed the day of bid closing must be completed by the Vendor in the VSS portal. The Customer Resource Center is not able to complete registrations and activate accounts on the same day. Closing dates will not be extended for

Vendors not registered by the date/time of the bid closing. Vendor Self Service

Registration Guides are provided at https://finance.ky.gov/eProcurement/ResourcesSupport/How%20to%20Respond

%20to%20Online%20Bid%20through%20Kentucky%20Vendor%20Self%20Servi ce.pdf

All bidders are cautioned to begin their electronic submission in sufficient time to complete before the closing date and time. Delays due to technical difficulties or document upload impediments shall not be justification for acceptance of a late bid or proposal. Vendor attention to this advisory is encouraged. If you need assistance, please contact the Customer Resource Center (CRC) by email at Finance.CRCGroup@ky.gov or phone 502-564-9641 or toll-free 877-973-HELP (4357).

Proposals shall be submitted in three (3) parts: The Technical Proposal, the Cost Proposal, and Proprietary Information. Each part shall consist of one document attachment. Do not submit multiple document attachments as Technical, Cost or Proprietary. All files shall be labeled accordingly. Attachments may not exceed

65,000 KB.

Proposals submitted online must be in an “Accepted” status and shall be assigned a date and time stamp from the eProcurement system at the time of final acceptance and formal submission by the vendor. The system will not allow submission of an online proposal after the published date and time for closing.

A proposal may be modified or withdrawn by electronic or written notice ONLY if received prior to the bid closing date and time. An electronic offer may be modified by applying the appropriate electronic signature and following the procedure in the state’s eProcurement signature.

https://finance.ky.gov/eProcurement/ResourcesSupport/How%20to%20Respond%20to%20Online%20Bid%20through%20Kentucky%20Vendor%20Self%20Service.pdf https://finance.ky.gov/eProcurement/ResourcesSupport/How%20to%20Respond%20to%20Online%20Bid%20through%20Kentucky%20Vendor%20Self%20Service.pdf https://finance.ky.gov/eProcurement/ResourcesSupport/How%20to%20Respond%20to%20Online%20Bid%20through%20Kentucky%20Vendor%20Self%20Service.pdf mailto:Finance.CRCGroup@ky.gov

6.6 Format of Response

A. Proposals shall be submitted in three (3) parts: the Technical Proposal, the Cost Proposal, and Proprietary Information. Each part shall consist of one document. Do not submit multiple documents as Technical, Cost or Proprietary.

1. Proposals must be submitted electronically in the eProcurement

System: See Attachment E - How to Respond to an Online Bid through the Kentucky Vendor Self Service site.

a. The Technical Proposal shall be submitted on one (1) document marked Technical (in Microsoft Word, Microsoft Excel or PDF format ONLY). Do not include embedded documents, hyperlinks or hyperlinks to videos. The document should be named in the following manner: Technical – Name of offeror RFP number

b. The Cost Proposal shall be submitted on one (1) document marked Cost (in Microsoft Word, Microsoft Excel or PDF format ONLY). Do not include embedded documents, hyperlinks or hyperlinks to videos.

The document should be named in the following manner: Cost – Name of offeror RFP number

c. Any Proprietary Information shall be submitted on one (1) document marked Proprietary (in Microsoft Word, Microsoft Excel or PDF format ONLY). Do not include embedded documents, hyperlinks or hyperlinks to videos. The document should be named in the following manner: Proprietary – Name of offeror RFP number

Pricing shall only be provided in the Cost Proposal. DO NOT SUBMIT

ANY PRICING INFORMATION IN THE TECHNICAL PROPOSAL.

All submitted Technical and Cost Proposals shall remain valid for a minimum of ninety (90) days after the proposal due date.

6.7 Technical Proposal Content

A. Transmittal Letter The transmittal letter shall be on the vendor’s letterhead and signed by an agent authorized to bind the vendor. The transmittal letter shall include the following:

i. A statement that deviations are included, if applicable. Proposed deviations must be outlined in the transmittal letter. Any deviation from the provisions of the solicitation must be specifically identified by the vendor in its proposal, which if successful, shall become part of the contract. Such deviations shall not be in conflict with the basic nature of this solicitation. The Commonwealth reserves the right to reject any and/or all deviations in whole or in part.

ii. A statement that, if awarded a contract as a result of this solicitation, the vendor shall comply in full with all requirements of the Kentucky Civil Rights Act, and shall submit all data required by KRS 45.560 to 45.640;

iii. A statement pursuant to KRS 11A.040 that the vendor has not knowingly violated any provisions of the Executive Branch Code of Ethics;

iv. A statement of that the vendor is in compliance with Prohibitions of Certain Conflicts of Interest;

v. A statement of certification in accordance with Federal Acquisition Regulation 52.209-5, Certification Regarding Debarment, Suspension, and Proposed Debarment that to the best of its knowledge and belief, the vendor and/or its principals is (are) not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any State or Federal agency.

vi. The name, address, telephone number, and email address of the contact person for this RFP. The address shall be one in which the major overnight delivery services will deliver.

vii. The name, address, telephone number, and email address of the contact person to serve as a point of contact for day-to-day operations.

viii. Subcontractor information to include name of company, address, telephone number and contact name, if applicable.

ix. Federal Tax ID

x. A statement that the vendor agrees to comply with items included in the

Mandatory Checklist, if applicable.

B. Disclosure of Violation of Statutes Pursuant to KRS 45A.485, contractors are required to reveal final determinations of violation of certain statutes incurred within the last five (5) years and be in continuous compliance with those statutes during the contract. Where applicable, the vendor is required to complete and submit Report of Prior Violations of Tax and Employment Laws.

C. Kentucky Tax Registration Application

Revenue Form 10A100, Kentucky Tax Registration Application effective July 2008, is a form to be completed by any person or entity wishing to contract with the Commonwealth to provide goods or services subject to sales and use tax pursuant to KRS 139.200.

https://finance.ky.gov/eProcurement/Pages/doing-business-with-the-commonwealth.aspx

In accordance with administrative regulation 200 KAR 5:390, this form has to be completed and submitted, before a contract can be awarded. Section 2 of the regulation also notes: “Failure to submit the required documentation https://finance.ky.gov/eProcurement/Pages/doing-business-with-the-commonwealth.aspx or to remain registered and in compliance with the sales and use tax filing and remittance requirements of KRS 139.540 and KRS 139.550 throughout the duration of the contract shall constitute a material breach of the contract and the contract may be terminated.”

D. Registration with the Secretary of State by a Foreign Entity

Pursuant to KRS 45A.480(1)(b), an agency, department, office, or political subdivision of the Commonwealth of Kentucky shall not award a state contract to a person that is a foreign entity required by KRS 14A.9-010 to obtain a certificate of authority to transact business in the Commonwealth (“certificate”) from the Secretary of State under KRS 14A.9-030, therefore, foreign entities should submit a copy of their certificate with their solicitation response. If the foreign entity is not required to obtain a certificate as provided in KRS 14A.9-010, the foreign entity should identify the applicable exception in its solicitation response. Foreign entity is defined within KRS 14A.1-070.

Businesses can register with the Secretary of State at:

https://www.sos.ky.gov/bus/business-filings/Pages/default.aspx

E. Required Annual Affidavit and Other Affidavit(s)

F. EEO Forms if applicable (see Section 10.19)

G. Proposed Solution (see Section 6.8)

6.8 Proposed Solution Content

TECHNICAL PROPOSAL

The proposed project staffing shall include staff assigned to this project.

Relevant Experience of the Firm The lessor shall provide a brief discussion of its firm’s experience with lease-purchasing programs similar to the Commonwealth’s existing program.

References The Lessor shall submit three (3) references of the firm’s experience with governmental lease-purchase financings.

If complete and accurate information is not provided, the Lessor’s reference may not be considered for evaluation and may receive a score of zero (0).

References’ telephone number and email address shall be included on the reference form otherwise the reference may receive a score of zero (0). If the https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=40425 https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=44318 https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=40424 https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=44318 https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=50474 https://www.sos.ky.gov/bus/business-filings/Pages/default.aspx reference does not have an email address, please state such on the reference form.

The Commonwealth, not the Lessor, shall contact references; however, it is the Lessor’s responsibility to ensure that a reference is aware of and anticipates being contacted by the Commonwealth. If a reference is unable to be reached or does not respond to the Commonwealth within the designated timeframe, that reference shall receive a score of zero (0). If it is determined as the result of a reference check that a reference is not qualified in accordance with the requirements of this RFP, the reference shall receive a score of zero (0).

All references shall be valid and within the United States.

References shall not include Commonwealth of Kentucky employees.

Staffing and Technical Support, Availability and Experience The lessor shall identify the lease staff member(s) and all personnel of the firm who will work on the proposed Master Lease Purchase transactions. Provide the relevant experience that each individual has on similar transactions.

DO NOT INCLUDE ANY COST IN THE TECHNICAL RESPONSE. COST

SHOULD BE SUBMITTED SEPARATELY

6.9 Cost Proposal Content

COST PROPOSAL

All-in Cost of Financing/Energy Savings Performance Contracts (Including Title Opinion if applicable)

The Commonwealth and potential vendors desire to lock in the interest rate for the project term at the earliest opportunity in order to determine financing costs related to the contractual guaranteed savings amount.

For probable financing scenarios below, assume for purposes of your firm’s proposal that these Commonwealth of KY entities are typical in ESPC funding scenarios. Underlying lease will have twelve (12) monthly payments per year and bear interest utilizing thirty (30)-day months and a 360-day year. Describe the all-in cost funding formula that your firm proposes to use in establishing the interest rate. The formula should be inclusive of all applicable fees and expenses. Please identify the index (LIBOR, Treasuries, SIFMA, etc.) to be used as the basis for your funding formula and provide a monthly history of that index for the past two (2) calendar years.

Master Lease Purchase Agreement for

A. Include the corresponding lease rate and payments that would have been in effect on the first day of the month had Agency #1 entered into a hypothetical $7,000,000 energy conservation project financed over a thirteen (13) year term with monthly payments calculated on a 30/360 basis, also detailing whether payments are in advance or arrears.

Please indicate the additional basis point charges on a not to exceed basis for quarterly, semi-annual and annual payments versus monthly convention. If necessary, multiple forms may be submitted to reflect changes in term, index rate, or payment timing. In this scenario, include prepayment penalty/schedule in years 1 thru 5. In this scenario no prepayment penalty is permitted beyond year 5. Assume that the useful life of the collateral exceeds the term.

B. Include the corresponding lease rate and payments that would have been in effect on the first day of the month had the Department for Agency #2 entered into a hypothetical $1,500,000 energy conservation project financed over a fourteen (14) year term with monthly payments calculated on a 30/360 basis, also detailing whether payments are in advance or arrears. Please indicate the additional basis point charges on a not to exceed basis for quarterly, semi-annual and annual payments versus monthly convention. If necessary, multiple forms may be submitted to reflect changes in term, index rate, or payment timing.

In this scenario no prepayment penalty is permitted beyond year 5.

Assume that the useful life of the collateral exceeds the term.

C. Include the corresponding lease rate and payments that would have been in effect on the first day of the month had the Agency #3 entered into a hypothetical $14,000,000 energy conservation project financed over a fourteen (14) year term with monthly payments calculated on a 30/360 basis, also detailing whether payments are in advance or arrears. Please indicate the additional basis point charges on a not to exceed basis for quarterly, semi-annual and annual payments versus monthly convention. If necessary, multiple forms may be submitted to reflect changes in term, index rate, or payment timing. In this scenario no prepayment penalty is permitted beyond year 5. Assume that the useful life of the collateral exceeds the term.

The vendor should provide its costs for the proposed solution as instructed on the Cost Proposal Form. (see Attachment B) PLEASE PROVIDE AN ITEMIZED

LIST OF THE PROPOSED COST ON A SEPARATE SHEET OF PAPER.

The Commonwealth of Kentucky is Tax Exempt. Do not include Federal Excise Tax, Kentucky Sales or Use Tax in proposed costs.

Costs for developing the proposals are solely the responsibility of the offerors. The Commonwealth of Kentucky shall not provide any reimbursements for such costs.

A proposal shall not be considered for award if the price in the proposal was not arrived at independently without collusion, consultation, communication, or agreement as to any matter relating to such prices with any other offeror or with any competitor. In addition, the offeror is prohibited from making multiple proposals in a different form.

Should conflict of interest be detected any time during the contract, the contract shall be null and void and the contractor shall assume all costs of this project until such time that a new contractor is selected.

SECTION 7 – PROPOSAL EVALUATION

7.1 Proposal Evaluation

The Commonwealth shall conduct a comprehensive, fair, and impartial evaluation of all proposals. The Commonwealth may reject any proposal that is incomplete or in which there are significant inconsistencies or inaccuracies. The Commonwealth reserves the right to reject all proposals.

The Commonwealth has established a Proposal Evaluation Committee to review, evaluate and verify information submitted by the offeror.

Each vendor is responsible for submitting all relevant, factual and correct information with their offer to enable the evaluator(s) to afford each vendor the maximum score based on the available data submitted by the vendor.

The Commonwealth shall evaluate the proposals by assigning scores as indicated.

7.2 Technical Proposal Evaluation

Proposals with a combined technical score less than 50% of the maximum technical points possible will not be considered for award and neither cost proposals nor oral demonstration/presentation evaluations will be evaluated regarding that proposal. A proposal’s combined technical score is the combined total points of all scored criteria in the technical proposal portion of an evaluation.

Criteria Maximum

Points Possible

Disclosure, Financial Statement and Credit Rating & Qualifications

Lease Purchase Agreement 300

Legal Considerations 50

Financing Rate Locks/Closing Schedule 200

Process Lien Release Procedures (narrative) 100

Prepayment Penalty (all or portion of lease) 200

Maximum Points Possible 1100

7.3 Cost Proposal Evaluation

Criteria Maximum Points

Possible

All-in Cost of Financing//Energy Savings Performance Contracts

Part A 200

Part B 200

Part C 200

Maximum Points Possible 600

The scoring of bids/proposals is subject to the reciprocal preference for Kentucky resident bidders and preferences for a Qualified Bidder or the Department of Corrections, Division of Prison Industries (See KRS 45A.490(1), (2), 45A.492, 45A.494 and KAR 200 5:410).

7.4 Oral Demonstration/Presentation Evaluation, if required

Criteria Maximum Points Possible

Oral Presentations/Demonstrations

The Commonwealth reserves the right to require Oral Presentations/Demonstrations to verify or expand on the Technical or Cost Proposals. Oral Presentations/Demonstrations may be conducted through video-conferencing or by conference call, if it is in the best interest of the Commonwealth to do so. This is the opportunity for the vendor to present and demonstrate the solution and to answer questions or to clarify the understanding of the evaluation committee in accordance with the requirements of this RFP. The Commonwealth reserves the right to reject any or all proposals in whole or in part based on the oral presentations/demonstrations.

If required, the top 3 highest ranking vendors may be invited.

Scheduling will be at the discretion of the Commonwealth. The Commonwealth reserves the right not to require oral presentations/demonstrations.

Maximum Points Possible 200

7.5 Best and Final Offer (BAFO)

In accordance with FAP 111-57-00 (3) (h), the Commonwealth reserves the right to request Best and Final Offers (BAFO).

7.6 Total Proposal Evaluation

Criteria Max Points Possible

Technical Proposal 1100

Cost Proposal 600

Oral Demonstrations/Presentations, if required 200

MAXIMUM POINTS POSSIBLE 1900

SECTION 8 – NEGOTIATIONS

The Commonwealth reserves the right pursuant to KRS 45A.085 to negotiate a contract with the top-ranked vendor. In the event the Commonwealth cannot reach agreement with the top-ranked vendor, it may proceed to negotiate with the next highest ranked vendor, and so on. It is the Commonwealth’s intent to award a contract to the vendor with whom successful negotiations are completed.

Terms and conditions that may be negotiated at the sole discretion of the Commonwealth include but are not limit to issues related to the Technical and/or Cost Proposals.

SECTION 9 – CONTRACT REQUIREMENTS AND PROVISIONS

9.1 Agencies to Be Served

This contract shall be for use by the OFFICE OF FACILITY DEVELOPMENT AND EFFICIENCY. This contract is used exclusively for ESPC projects administered by the Division of Facility Efficiency

9.2 Term of Contract and Renewal Options

The initial term of the contract shall be for a period beginning July 1, 2023 through June 30, 2024.

This contract may be renewed at the completion of the initial contract period for four (4) additional two (2) year periods upon the mutual agreement of the Parties.

Such mutual agreement shall take the form of a contract modification as described in Section 10.7 of this RFP.

At the end of the contract, the vendor shall provide all agency data in a form that can be converted to any subsequent system of the agency’s choice. The vendor shall cooperate to this end with the vendor of the agency’s choice, in a timely and efficient manner.

The Commonwealth reserves the right not to exercise any or all renewal options.

The Commonwealth reserves the right to extend the contract for a period less than the length of the above-referenced renewal period if such an extension is determined by the Commonwealth Buyer to be in the best interest of the Commonwealth.

The Commonwealth reserves the right to renegotiate any terms and/or conditions as may be necessary to meet requirements for the extended period. In the event proposed revisions cannot be agreed upon, either party shall have the right to withdraw without prejudice from either exercising the option or continuing the contract in an extended period.

9.3 Basis of Price Revisions

PRICE ADJUSTMENTS: Unless otherwise specified, the prices established by the contract resulting from this solicitation shall remain firm for the contract period:

A. Price Increases: A price increase shall not occur during the initial contract period. A vendor may request a price increase after the initial contract period, which may be granted or denied by the Commonwealth. Any such price increase shall be based on industry wide price changes. The contract holder must request in writing a price increase at least thirty (30) days prior to the effective date and shall provide firm proof that the price increase(s) is justified.

DECA may request additional information or justification. If the price increase is denied, the contract holder may withdraw from the contract without prejudice upon written notice and approval by DECA. Provided, however, that the vendor must continue service, at the contract prices, until a new contract can be established (usually within sixty (60) days).

9.4 Notices

After the award of contract, all programmatic communications with regard to day-to-day performance under the contract are to be made to the agency technical contact(s) identified during the negotiation phase of this procurement. After the award of contract, all communications of a contractual or legal nature are to be made to the Commonwealth Buyer.

9.5 Subcontractors

The contractor is permitted to make subcontract(s) with any other party for furnishing any of the work or services herein. The contractor shall be solely responsible for performance of the entire contract whether or not subcontractors are used. The Commonwealth shall not be involved in the relationship between the prime contractor and the subcontractor. Any issues that arise as a result of this relationship shall be resolved by the prime contractor. All references to the contractor shall be construed to encompass both the contractor and any subcontractors of the contractor.

SECTION 10 – STANDARD TERMS AND CONDITIONS

10.1 Contract Components and Order of Precedence

The Commonwealth’s acceptance of the contractor’s offer in response to the solicitation, indicated by the issuance of a contract award by the Division of Engineering and Contract Administration, shall create a valid contract between the Parties consisting of the following:

1. Procurement Statutes, Regulations and Policies

2. Any written Agreement between the Parties;

3. Any Addenda to the Solicitation;

4. The Solicitation and all attachments

5. Any Best and Final Offer;

6. Any clarifications concerning the Contractor’s proposal in response to the Solicitation;

7. The Contractor’s proposal in response to the Solicitation.

In the event of any conflict between or among the provisions contained in the contract, the order of precedence shall be as enumerated above.

10.2 Final Agreement

The contract represents the entire agreement between the parties with respect to the subject matter hereof. Prior negotiations, representations, or agreements, either written or oral, between the parties hereto relating to the subject matter hereof shall be of no effect upon this contract.

10.3 Contract Provisions

If any provision of this contract (including items incorporated by reference) is declared or found to be illegal, unenforceable, or void, then both the Commonwealth and the contractor shall be relieved of all obligations arising under such provision. If the remainder of this contract is capable of performance, it shall not be affected by such declaration or finding and shall be fully performed.

10.4 Type of Contract

The contract proposed in response to this Solicitation shall be a Master Agreement and subject to additional ESPC projects for the duration of the contract.

10.5 Contract Usage

As a result of this RFP, the contractual agreement with the selected vendor will in no way obligate the Commonwealth of Kentucky to purchase any services or equipment under this contract. The Commonwealth agrees, in entering into any contract, to purchase only such services in such quantities as necessary to meet the actual requirements as determined by the Commonwealth.

There are no projects in development at this time.

10.6 Addition or Deletion of Items or Services

N/A

10.7 Changes and Modifications to the Contract

Pursuant to KRS 45A.210 (1) and 200 KAR 5:311, no modification or change of any provision in the contract shall be made, or construed to have been made, unless such modification is mutually agreed to in writing by the contractor and the Commonwealth, and incorporated as a written amendment to the contract and processed through the DECA and approved by the Finance and Administration Cabinet prior to the effective date of such modification or change pursuant to KRS 45A.210(1) and 200 KAR 5:311. Memorandum of understanding, written clarification, and/or correspondence shall not be construed as amendments to the contract.

If the contractor finds at any time that existing conditions made modification of the contract necessary, it shall promptly report such matters to the Commonwealth Buyer for consideration and decision.

10.8 Changes in Scope

The Commonwealth may, at any time by written order, make changes within the general scope of the contract. No changes in scope are to be conducted except at the approval of the Commonwealth.

10.9 Contract Conformance

If the Commonwealth Buyer determines that deliverables due under the contract are not in conformance with the terms and conditions of the contract and the mutually agreed-upon project plan, the Buyer may request the contractor to deliver assurances in the form of additional contractor resources and to demonstrate that other major schedules will not be affected. The Commonwealth shall determine the quantity and quality of such additional resources and failure to comply may constitute default by the contractor.

10.10 Assignment

The contract shall not be assigned in whole or in part without the prior written consent of the Commonwealth Buyer. Any purported assignment is void.

10.11 Payment

The Commonwealth will make payment within thirty (30) working days of receipt of contractor's invoice or of acceptance of goods and/or services in accordance with KRS 45.453 and KRS 45.454.

Payments are predicated upon successful completion and acceptance of the described work, services, supplies, or commodities, and delivery of the required documentation. Invoices for payment shall be submitted to the agency contact person or his representative.

10.12 Contractor Cooperation in Related Efforts

The Commonwealth of Kentucky may undertake or award other contracts for additional or related work, services, supplies, or commodities, and the contractor shall fully cooperate with such other contractors and Commonwealth employees.

The contractor shall not commit or permit any act that will interfere with the performance of work by any other contractor or by Commonwealth employees.

10.13 Contractor Affiliation

"Affiliate" shall mean a branch, division or subsidiary that is effectively controlled by another party. If any affiliate of the contractor shall take any action that, if done by the contractor, would constitute a breach of this agreement, the same shall be deemed a breach by such party with like legal effect.

10.14 Commonwealth Property

N/A

10.15 Insurance

The Lessor shall provide professional liability insurance for its professional employees, public liability, and workers' compensation insurance. Insuring as they may appear, the interest of all parties of agreement against any and all claims which may arise out of the Lessor's operations under the terms of this Contract. In the event any carrier of such insurance exercises cancellation, notice of such cancellation shall be made immediately to the Commonwealth Buyer.

10.16 Confidential Information

The contractor shall comply with the provisions of the Privacy Act of 1974 and instruct its employees to use the same degree of care as it uses with its own data to keep confidential information concerning client data, the business of the Commonwealth, its financial affairs, its relations with its citizens and its employees, as well as any other information which may be specifically classified as confidential by the Commonwealth in writing to the contractor. All Federal and State Regulations and Statutes related to confidentiality shall be applicable to the contractor. The contractor shall have an appropriate agreement with its employees, and any subcontractor employees, to that effect, provided however, that the foregoing will not apply to:

A. Information which the Commonwealth has released in writing from being maintained in confidence;

B. Information which at the time of disclosure is in the public domain by having been printed an published and available to the public in libraries or other public places where such data is usually collected;

or

C. Information, which, after disclosure, becomes part of the public domain as defined above, thorough no act of the contractor.

10.17 Advertising Award

The contractor shall not refer to the award of contract in commercial advertising in such a manner as to state or imply that the firm or its services are endorsed or preferred by the Commonwealth of Kentucky without the expressed written consent of the buyer. (see Section 9.4)

10.18 Patent or Copyright Infringement

The contractor shall report to the Commonwealth promptly and in reasonable written detail, each notice of claim of patent or copyright infringement based on the performance of this contract of which the contractor has knowledge.

The Commonwealth agrees to notify the contractor promptly, in writing, of any such claim, suit or proceeding, and at the contractor's expense give the contractor proper and full information needed to settle and/or defend any such claim, suit or proceeding.

If, in the contractor's opinion, the equipment, materials, or information mentioned in the paragraphs above is likely to or does become the subject of a claim or infringement of a United States patent or copyright, then without diminishing the contractor's obligation to satisfy any final award, the contractor may, with the Commonwealth's written consent, substitute other equally suitable equipment, materials, and information, or at the contractor's options and expense, obtain the right for the Commonwealth to continue the use of such equipment, materials, and information.

The Commonwealth agrees that the contractor has the right to defend, or at its option, to settle and the contractor agrees to defend at its own expense, or at its option to settle, any claim, suit or proceeding brought against the Commonwealth on the issue of infringement of any United States patent or copyright or any product, or any part thereof, supplied by the contractor to the Commonwealth under this agreement. The contractor agrees to pay any final judgment entered against the Commonwealth on such issue in any suit or proceeding defended by the contractor.

If principles of governmental or public law are involved, the Commonwealth may participate in the defense of any such action, but no costs or expenses shall be incurred for the account of the contractor without the contractor's written consent.

The contractor shall have no liability for any infringement based upon:

A. the combination of such product or part with any other product or part not furnished to the Commonwealth by the contractor

B. the modification of such product or part unless such modification was made by the contractor

C. the use of such product or part in a manner for which it was not designed

10.19 Permits, Licenses, Taxes and Commonwealth Registration

The contractor shall procure all necessary permits and licenses and abide by all applicable laws, regulations, and ordinances of all Federal, State, and local governments in which work under this contract is performed.

The…