ATTACHMENT A RFP 758 1900000181 Inmate Communications.pdf

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.

FACE OF SOLICITATION - SIGNED [see Section 60.4]

*PROPOSED TECHNICAL SOLUTION UNDER SEALED COVER AND BY CLOSING

DATE AND TIME [see Sections 60.5 – 60.7]

*PROPOSED COST SOLUTION UNDER SEALED COVER AND BY CLOSING DATE

AND TIME [see Section 60.8 & Attachment B]

*MANDATORY REQUIREMENTS CHECKLIST [see Attachment J]

TRANSMITTAL LETTER [see Section 60.6(A)]

REVENUE FORM 10A100 KENTUCKY TAX REGISTRATION APPLICATION [see Section 60.6(C)]

CERTIFICATE OF AUTHORITY- REGISTRATION WITH SECRETARY OF STATE

BY A FOREIGN ENTITY [see Section 60.6(D)]

REQUIRED ANNUAL AFFIDAVIT AND OTHER AFFIDAVIT(S) [see Attachment C]

EEO FORMS IF APPLICABLE [see Section 40.21]

*The Commonwealth defines SEALED as “a closure that must be broken to be opened and that thus reveals tampering”. (Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/seal)

*Please see Attachment E- The Protection of Personal Information Security and Breach Investigation Procedures and Practice Act (KRS 61.931), et seq.

effective January 1, 2015.

Attachment A

Commonwealth of Kentucky Request for Proposal (RFP)

For

INMATE COMMUNICATION SERVICES

RFP 758 1900000181

Release Date: January 31, 2019

CLOSING DATE AND TIME: March 28, 2019 at 3:30PM EST

(See Section 10.9 of this RFP for the Estimated Schedule of RFP Activities)

Issued by

The Finance and Administration Cabinet On Behalf Of

Kentucky Department of Corrections (KYDOC)

Commonwealth Buyer:

Kathy Robinson, CPPO, CPPB

COMMONWEALTH OF KENTUCKY

FINANCE AND ADMINISTRATION CABINET

Office of Procurement Services New Capitol Annex

702 CAPITOL AVE RM 096

FRANKFORT KY 40601

(502)564-7544 Fax: (502) 564-6013 kathy.robinson@ky.gov

TABLE OF CONTENTS

Proposal Submission Checklist Section 10 – Introduction and Overview Section 20 – Background and Present System Summary Section 30 – Commonwealth Office of Technology Requirements Section 40 – Procurement Requirements Section 50 – Scope of Work Section 60 – Proposal Submission Section 70 – Proposal Evaluation Section 80 – Negotiations Section 90 - Attachments mailto:stephanier.williams@mail.state.ky.us

SECTION 10 – INTRODUCTION AND OVERVIEW

10.1 Purpose

The purpose of this Request for Proposal (RFP) is to solicit proposals for competitive negotiations pursuant to 200 KAR 5:307 and to invite responses from qualified, experienced Vendors who can provide a reliable, cost effective Inmate Telephone System (ITS), Video Visitation System (VVS), a Correctional Grade Tablet Solution (Tablet) and additional technology defined herin, which meets the requirements described in this RFP for the Kentucky Department of Corrections

(KYDOC).

10.2 Issuing Office

The Commonwealth of Kentucky, Finance and Administration Cabinet and Office of Procurement Services is issuing this RFP on behalf of KYDOC. 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.

10.3 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 site at http://emarsonline1311.state.ky.us/webapp/vssprdonline/AltSelfService. It is not necessary to register to access this solicitation. Unregistered vendors can access solicitations by clicking on public access.

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

10.4 RFP Terminology

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

Proposer, Offeror, Contractor, Provider, or Vendor

Commonwealth Buyer, Buyer, Purchaser, or Contract Officer

RFP, Solicitation, or Procurement

Bid, Proposal, or Offer http://emarsonline1311.state.ky.us/webapp/vssprdonline/AltSelfService

Commonwealth of Kentucky, Commonwealth, State, Agency, Kentucky Department of Corrections, or KYDOC

Fiscal Year will be defined as the Commonwealth fiscal year: July 1 through June 30.

Biennium will be defined as the Commonwealth biennium: July 1 of each even numbered year through June 30 of the next even numbered year.

Requirements that include the words “Shall”, “Will” and “Must” indicate a mandatory requirement.

10.5 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, or fax), concerning this procurement shall be addressed to the Buyer.

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

10.6 Written Questions and Deviations Regarding this RFP

Vendors are encouraged to submit written questions pursuant to Section 10.9 of this RFP. Should a vendor object to any of the Commonwealth’s standard terms and conditions or provisions of the solicitation, that vendor must specifically identify the deviation and must propose specific alternative language that could be acceptable to the Commonwealth. Vendors must include a brief statement of the purpose and impact, if any, for each proposed change in addition to the specific proposed alternate wording. General references to the vendor’s terms and conditions or attempts at complete substitutions are not acceptable. 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. Vendors must submit deviations pursuant to the schedule in Section 10.9 of this RFP.

Written questions and deviations shall be submitted to the Commonwealth Buyer via email at Kathy.Robinson@ky.gov or via fax at 502-564-6013. Vendors should submit questions on Attachment D-Vendors Question Form and deviations on Attachment K-Vendors Deviation Form. No questions or deviations shall be accepted after the date(s) listed in Section 10.9 unless the question(s) or deviation(s) is considered material to the procurement. The Commonwealth shall respond to salient questions in writing by issuing an addendum to the solicitation.

Any addendum will either incorporate acceptable deviations into solicitation, indicate the deviation is negotiable with the successful offeror or indicate the deviation is unacceptable. Offerors proposals that include any deviation deemed unacceptable pursuant to the addendum will result in disqualification of the offerors proposal. The addendum shall be posted to the Kentucky Vendor Self Service site.

10.7 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.

To view the award of contract(s) and the contractor(s) receiving the award(s) for this solicitation, access the Kentucky Vendor Self Service site at http://emarsonline1311.state.ky.us/webapp/vssprdonline/AltSelfService. Vendors can search for the solicitation title or number in the keyword search field, or can filter their search for only awarded solicitations by clicking on Advanced Search and changing the status to “Awarded”. The award(s) information can be accessed by clicking on the details button of the solicitation and clicking the “Notice of Award” tab. It is the vendor’s responsibility to review this information in a timely fashion. No other notification of the results of an award of contract will be provided.

10.8 Protest

Pursuant to KRS 45A.85, 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 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:

William M. Landrum III, Secretary

COMMONWEALTH OF KENTUCKY

FINANCE AND ADMINISTRATION CABINET

New Capitol Annex

702 CAPITOL AVE RM 383

FRANKFORT KY 40601

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.

http://emarsonline1311.state.ky.us/webapp/vssprdonline/AltSelfService

10.9 Estimated Schedule of RFP Activities

The following table represents 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 RFP Activities, including the associated dates and times.

Release of RFP

January 31, 2019

Vendors’ Written Questions due by 12:00 PM EST

(SUBMIT QUESTIONS ON ATTACHMENT D-VENDORS’

QUESTION FORM)

February 19, 2019

Vendors Deviation Form

(SUBMIT QUESTIONS ON ATTACHMENT K – VENDORS’

DEVIATION FORM

February 19, 2019

Commonwealth’s Response to Vendors’ Written Questions AND Vendors’ Deviation Form

March 7, 2019

Proposals due by 3:30 PM EST

March 28, 2019

All bidders are cautioned to be aware of security in the Capitol Annex in Frankfort. In-person or courier delivered bids/proposals in response to a Commonwealth solicitation should be delivered a minimum of thirty

(30) minutes to one (1) hour earlier than the published closing date and time to allow for a security check-in.

Delays due to building security checks shall not be justification for acceptance of a late bid or proposal.

Vendor attention to this advisory is encouraged.

SECTION 20 – BACKGROUND AND PRESENT SYSTEM SUMMARY

20.1 History

KYDOC currently operates fifteen (15) adult institutions throughout the Commonwealth. The Ross-Cash Facility is considered an extension to the Western Kentucky Correctional Facility. Collectively, these institutions have seven hundred and twenty-four (782) inmate telephones (inclusive of portable and hands-free phones), with an average inmate to telephone ratio of 17 to 1. Following is a historical summary of KYDOC’s inmate telephone program for the last nine (9) years:

KYDOC secured a state-wide contract with its current provider in 2006 to provide inmate telephone access inclusive of collect, pre-paid collect and debit, local, intralata/intrastate, interlata/intrastate, interlata/interstate and international calling. The incumbent provides correctional-grade hardware and software for inmate telephone services inclusive of the protection to the general public from harassment and fraud, protection and safety to the institutional security through the use of the latest intelligence gathering and monitoring technology and the provision of a Windows-based user application for call tracking, full channel, digital recording and monitoring of all calls, PIN database maintenance, PREA, data analytics, crime tip, voice biometrics, and investigative call monitoring.

20.2 Introduction

KYDOC’s mission is “to protect the citizens of the Commonwealth and to provide a safe, secure and humane environment for staff and offenders in carrying out the mandates of the legislative and judicial processes; and, to provide opportunities for offenders to acquire skills which facilitate non-criminal behavior.” As part of this mission, KYDOC provides offenders with the opportunity to communicate with their family and friends via telephone calls through an inmate telephone system containing internal security features. The security features protect the citizens and staff from telephone-based harassment while allowing the inmates to maintain supportive relationships with family and friends. To this end, KYDOC seeks an experienced Vendor to provide ITS, VVS and Tablet solutions to the Kentucky Department of Corrections. Services shall be provided in accordance with the provisions set forth in this RFP and to all of the Facilities listed in Attachment G – Facility Specifications.

20.3 Overview of Current Information System

The current ITS is a secure web-based centralized telecommunications solution that integrates with the Kentucky Offender Management Systems (KOMS), kiosks and Commissary Systems for data sharing and fund transfers. It is the Inmate Telephone System Provider’s (ITSP) responsibility to handle all inmate calls originating from the Facilities.

The ITSP provides all inmate telephones, wiring and related equipment and is responsible for installation, maintenance, repair, upgrades and monitoring of the system’s functionality without cost to the KYDOC. ITSP is responsible for all systems integration and costs. ITSP provisions and pays for all data transmission lines used by the ITS. The ITS enables inmates at all of the Facilities to complete local, long distance and/or international collect, pre-paid collect, pre-paid card, debit, free and speed dial calls and audio recording of visitation sessions.

Access to the ITS by authorized KYDOC staff is achieved by a single-login. The ITS provides system security through rule-enforced, role-based permissions. Only designated administrative personnel can enroll and set permissions for staff-users.

While some roles are more clerical in nature, such as the ability to change/add telephone numbers to the global list, others are investigative in nature and allow designated individuals to listen to active calls or recordings for investigative purposes. Institutional intelligence personnel use the ITS to perform data queries and word and phrase searches that are instrumental to the investigative process.

SECTION 30 – COMMONWEALTH OFFICE OF TECHNOLOGY (COT)

REQUIREMENTS

PROPOSALS THAT DO NOT MEET MANDATORY REQUIREMENTS WILL BE

DEEMED NON-RESPONSIVE AND WILL NOT BE CONSIDERED. REFER TO

ATTACHMENT J – MANDATORY REQUIREMENTS CHECKLIST.

30.1 Commonwealth Information Technology Policies and Standards The Vendor and any subcontractors shall be required to adhere to applicable Commonwealth policies and standards related to technology use and security.

30.2 Compliance with Kentucky Information Technology Standards (KITS)

A. The Kentucky Information Technology Standards (KITS) reflect a set of principles for information, technology, applications and organization. These standards provide guidelines, policies, directional statements and sets of standards for information technology. It defines, for the Commonwealth, functional and informational needs so that technology choices can be made based on business objectives and service delivery. The Vendor shall stay knowledgeable and shall abide by these standards for all related work resulting from this RFP:

http://technology.ky.gov/Governance/Pages/KITS.aspx

B. The Vendor and any subcontractors shall be required to submit a technology roadmap for any offered solution. Additional roadmaps will be submitted upon request of the Commonwealth. The Roadmap shall include, but is not limited to, planned, scheduled and projected product lifecycle dates and historical release/ patch or maintenance dates for the technology. In addition, any guidance on projected release/revision/patch/maintenance schedules would be preferred.

30.3 Compliance with Commonwealth Security Standards

The software deployment and all of Vendor services shall abide by security standards as outlined in the Commonwealth’s Enterprise Information Technology Policies.

Enterprise Security Policies:

http://technology.ky.gov/ciso/Pages/InformationSecurityPolicies,StandardsandPro cedures.aspx

Enterprise Policies http://technology.ky.gov/policy/pages/policies.aspx

Finance and Administration Cabinet Commonwealth Office of Technology Enterprise IT Policies:

http://finance.ky.gov/services/policies/Pages/default.aspx http://technology.ky.gov/Governance/Pages/KITS.aspx http://technology.ky.gov/ciso/Pages/InformationSecurityPolicies,StandardsandProcedures.aspx http://technology.ky.gov/ciso/Pages/InformationSecurityPolicies,StandardsandProcedures.aspx http://technology.ky.gov/policy/pages/policies.aspx http://finance.ky.gov/services/policies/Pages/default.aspx

30.4 Compliance with Industry Accepted Reporting Standards Based on Trust Service Principles and Criteria The vendor must employ comprehensive risk and threat management controls based on defined industry standards for service organizations such as AICPA TSP section 100, Trust Services Principles and Criteria. The Vendor must annually assert compliance and engage a third party to examine such assertions and controls to provide a Report, such as AT101 SOC 2 type 2 or equivalent Report on Controls at a Service Organization Relevant to Security, Availability, Processing Integrity, Confidentiality, and Privacy, which contains an opinion on whether the operating controls effectively support the assertions. All such reports, including publicly available reports (i.e. AT 101 SOC 3) shall be made available to the Commonwealth for review.

30.5 System Vulnerability and Security Assessments

The Commonwealth reserves the right to conduct an external non-invasive vulnerability and security assessment of the software and infrastructure used to provide services prior to implementation and periodically thereafter. Upon completion of these assessments, the Commonwealth will communicate any findings to the Vendor for action. Any cost relating to the alleviation of the findings will be the responsibility of the Vendor. Mitigations will be subject to re-evaluation after completion. In cases where direct mitigation cannot be achieved, the Vendor shall communicate this and work closely with the Commonwealth to identify acceptable compensating controls that will reduce risk to an acceptable and agreed upon level. An accredited third party source may be selected by the Vendor to address findings, provided they will acknowledge all costs and provide valid documentation of mitigation strategies in an agreed upon timeframe.

30.6 Privacy, Confidentiality and Ownership of Information

The Commonwealth Office of Technology (COT) is the designated owner of all data associated with the ITS, VVS and Tablets and shall approve all access to that data.

The Vendor shall not have ownership of Commonwealth data at any time. The Vendor shall be in compliance with privacy policies established by governmental agencies or by state or federal law. Privacy policy statements may be developed and amended from time to time by the Commonwealth and will be appropriately displayed on the Commonwealth portal (ky.gov). The Vendor should provide sufficient security to protect the Commonwealth and KYDOC data in network transit, storage, and cache. All data, including backups and archives, must be maintained at all times within the contiguous United States. All sensitive data, as defined in Enterprise Standards, must be encrypted in-transit and at rest.

30.7 Software Development

Source code for software developed or modified by the Vendor specifically for the Commonwealth shall become property of the Commonwealth. This is not meant to include minor modifications to the Vendor software to configure the software for Commonwealth use. This is meant to include software written to add functionality to the Vendor product specifically to meet the requirements of the Commonwealth where the Commonwealth bears the entire cost of creating that functionality.

30.8 License Agreements

Software provided by the vendor to the Commonwealth should contain a provision for perpetual licensing with all upgrade options. License agreements should also contain a provision for the Commonwealth to maintain a version of the software in escrow in the event the Vendor is unable to continue business for financial or other business reasons.

30.9 Software Version Requirements

All commercially supported and Commonwealth approved software components such as Operating System (OS), Database software, Application software, Web Server software, Middle Tier software, and other ancillary software must be kept current. In the event that a patch interferes with the solution, the Vendor must present a plan for compliance to the Commonwealth outlining the constraints and an appropriate plan of action to bring the solution in to compliance to allow this patch to be applied in the shortest timeframe possible, not to exceed three (3) months, unless otherwise negotiated with the Commonwealth.

The Vendor shall keep software in compliance with industry standards to support third party dependencies such as Java, Adobe Flash, Internet Explorer, Mozilla Firefox, etc. at currently supported version, release, and patch levels. In the event that a third party dependency interferes with the solution, the Vendor must present a plan for compliance to the Commonwealth outlining the constraints and an appropriate plan of action to bring the solution into compliance to allow this third party dependency to be updated in the shortest timeframe possible, not to exceed three (3) months, unless otherwise negotiated with the Commonwealth.

30.10 Section 508 Compliance

All user interfaces to the solution(s) provided, shall be warranted by the Vendor to comply with Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d) and the World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines (WCAG) 1.0, conformance level Double-A or greater.

30.11 No Surreptitious Code Warranty

The contractor represents and warrants that no copy of licensed Software provided to the Commonwealth contains or will contain any Self-Help Code or any Unauthorized Code as defined below. This warranty is referred to in the Contract as the "No Surreptitious Code Warranty”.

As used in the Contract, "Self-Help Code" means any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of a person other than the licensee of the software. Self-Help Code does not include Software routines in a computer program, if any, designed to permit an owner of the computer program (or other person acting by authority of the owner) to obtain access to a licensee's computer system(s) (e.g. remote access) for purposes of maintenance or technical support.

As used in the Contract, "Unauthorized Code" means any virus, Trojan horse, spyware, worm or other Software routines or components designed to permit unauthorized access to disable, erase, or otherwise harm software, equipment, or data; or to perform any other such actions. The term Unauthorized Code does not include Self-Help Code.

In addition, contractor will use up-to-date commercial virus detection software to detect and remove any viruses from any software prior to delivering it to the Commonwealth.

The Vendor shall defend the Commonwealth against any claim, and indemnify the Commonwealth against any loss or expense arising out of any breach of the No Surreptitious Code Warranty.

30.12 Applicable Security Control Framework Compliance

The Vendor must have an awareness and understanding of the NIST Special Publication 800-53 Security Control Framework and employ safeguards that meet or exceed the moderate level controls as defined within the standard. These controls must provide sufficient safeguards to provide reasonable protections around the Commonwealth’s data to ensure that the confidentiality, integrity, and availability is maintained at an appropriate level. These include but are not limited to:

Access Control The vendor must employ policy and process that provide for stringent control to limit physical and logical access to systems that house Commonwealth data to a need to know basis and provide clear separation of duties.

Awareness and Training The vendor must provide the appropriate role specific training for staff to ensure that there is awareness and understanding of roles and responsibilities as they relate to the protections around the Commonwealth’s data.

Audit and Accountability There must be sufficient auditing capability to ensure that actions are tracked and there is individual accountability for all actions taken by vendor staff.

Configuration Management The vendor must work within established baselines that provide minimal functionality needed to ensure service delivery without exposing unnecessary risk. The vendor must also employ structured change control processes that provide a level of coordination with the client agreed upon in a Service Level Agreement (SLA).

Contingency Planning

The vendor must employ contingent planning policy and procedures that ensure service delivery based on agreed SLA levels while maintaining all Commonwealth data within the continental United States.

Identification and Authorization The vendor must employ appropriate identity and access management policies and procedures to ensure that access is appropriately authorized and managed at a level to ensure that access is provisioned and de-provisioned in a timely and efficient manner.

Incident Response The vendor must employ policy and procedures to ensure that an appropriate response to all identified security incidents are addressed in a timely manner and are reported to the appropriate parties in an agreed upon SLA timeframe. The vendor must also ensure that all staff are sufficiently trained to ensure that they can identify situations that are classified as security incidents.

Maintenance The vendor must employ policy and procedures that ensure all maintenance activities are conducted only by authorized maintenance staff leveraging only authorized maintenance tools.

Media Protection The vendor must employ policy and procedure to ensure that sufficient protections exist to protect Commonwealth data on all storage media throughout the media lifecycle and maintain documentation from media creation through destruction.

Physical and Environmental Controls The vendor must employ physical and environmental policies and procedures that ensure that the service and delivery infrastructure are located in a physically secure and environmentally protected environment to ensure the confidentiality, integrity, and availability of Commonwealth data.

Personnel Security The vendor must employ policies and procedures to ensure that all staff that have access to systems that house, transmit, or process Commonwealth data have been appropriately vetted and have been through a background check at the time of hire and periodically thereafter.

System and Communications Protections The vendor must employ physical and logical protection that protect system communications and communication media from unauthorized access and to ensure adequate physical protections from damage.

SECTION 40 – PROCUREMENT REQUIREMENTS

40.1 Procurement Requirements

Procurement requirements are listed under “Procurement Laws, Preference, Regulations and Policies” and “Response to Solicitation” located on the eProcurement Web page at http://eprocurement.ky.gov and http://finance.ky.gov/services/eprocurement/Pages/VendorServices.aspx http://eprocurement.ky.gov/ http://finance.ky.gov/services/eprocurement/Pages/VendorServices.aspx respectively. The Vendor must comply with all applicable statutes, regulations and policies related to this procurement.

40.2 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 Office of Procurement Services, 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; and

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.

40.3 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.

40.4 Contract Provisions

If any provision of the 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 the Contract is capable of performance, it shall not be affected by such declaration or finding and shall be fully performed.

40.5 Type of Contract

The contract proposed in response to this solicitation shall be a revenue generating agreement for the elements listed in this solicitation. This solicitation is specifically not intended to solicit proposals for contracts on the basis of cost-plus, open-ended rate schedule, nor any non-fixed price arrangement.

40.6 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 the 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.

40.7 Addition or Deletion of Items or Services

The Office of Procurement Services reserves the right to add new and similar items, by issuing a contract modification, to the Contract with the consent of the Vendor.

Until such time as the Vendor receives a modification, the Vendor shall not accept delivery orders from any agency referencing such items or services.

40.8 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 Office of Procurement Services 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.

40.9 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.

40.10 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.

40.11 Assignment

The contract shall not be assigned in whole or in part without the prior written consent of the Commonwealth Buyer.

40.12 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.

40.13 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.

40.14 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.

40.15 Commonwealth Property

The Contractor shall be responsible for the proper custody and care of any Commonwealth-owned property furnished for Contractor's use in connections with the performance of this Contract. The Contractor shall reimburse the Commonwealth for its loss or damage, normal wear and tear excepted.

40.16 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.

40.17 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 and 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.

40.18 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 agency technical contact person.

40.19 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 the 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 the 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.

40.20 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 the Contract is performed.

The Contractor shall maintain certification of authority to conduct business in the Commonwealth of Kentucky during the term of the Contract. Such registration is obtained from the Secretary of State, who will also provide the certification thereof.

However, the contractor need not be registered as a prerequisite for responding to the RFP. Additional local registration or licensing may be required.

The Contractor shall pay any sales, use, and personal property taxes arising out of the Contract and the transaction contemplated hereby. Any other taxes levied upon this Contract, the transaction, or the equipment or services delivered pursuant hereto shall be borne by the Contractor.

40.21 EEO Requirements

The Equal Employment Opportunity Act of 1978 applies to All State government projects with an estimated value exceeding five-hundred thousand ($500,000.00) dollars. The contractor shall comply with all terms and conditions of the Act.

http://finance.ky.gov/services/eprocurement/Pages/VendorServices.aspx.

40.22 Provisions for Termination of the Contract

Any contract resulting from this solicitation shall be subject to the termination provisions set forth in 200 KAR 5:312.

40.23 Bankruptcy

In the event the Contractor becomes the subject debtor in a case pending under the Federal Bankruptcy Code, the Commonwealth's right to terminate this Contract may be subject to the rights of a trustee in bankruptcy to assume or assign this Contract. The trustee shall not have the right to assume or assign this Contract unless the trustee (a) promptly cures all defaults under the Contract; (b) promptly compensates the Commonwealth for the monetary damages incurred as a result of http://finance.ky.gov/services/eprocurement/Pages/VendorServices.aspx such default, and (c) provides adequate assurance of future performance, as determined by the Commonwealth.

40.24 Conformance with Commonwealth & Federal Laws/Regulations

This Contractshall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky. Any action brought against the Commonwealth on the Contract, including but not limited to actions either for breach of contract or for enfordement of the contract, shall be brought in Frankln Circuit Court, Franklin County, Kentucky in accordance with KRS 45A.245.

40.25 Accessibility

Vendor hereby warrants that the products or services to be provided under this Contract comply with the accessibility requirements of Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794d), and its implementing regulations set forth at Title 36, Code of Federal Regulations, part 1194. Vendor further warrants that the products or services to be provided under this Contract comply with existing federal standards established under Section 255 of the Federal Telecommunications Act of 1996 (47 U.S.C. § 255), and its implementing regulations set forth at Title 36, Code of Federal Regulations, part 1193, to the extent the Vendor's products or services may be covered by that act. Vendor agrees to promptly respond to and resolve any complaint regarding accessibility of its products or services which is brought to its attention.

40.26 Access to Records

The state agency certifies that it is in compliance with the provisions of KRS 45A.695, "Access to contractor's books, documents, papers, records, or other evidence directly pertinent to the contract." The Contractor, as defined in KRS 45A.030, agrees that the contracting agency, the Finance and Administration Cabinet, the Auditor of Public Accounts, and the Legislative Research Commission, or their duly authorized representatives, shall have access to any books, documents, papers, records, or other evidence, which are directly pertinent to this agreement for the purpose of financial audit or program review. The Contractor also recognizes that any books, documents, papers, records, or other evidence, received during a financial audit or program review shall be subject to the Kentucky Open Records Act, KRS 61.870 to 61.884. Records and other prequalification information confidentially disclosed as part of the bid process shall not be deemed as directly pertinent to the agreement and shall be exempt from disclosure as provided in KRS 61.878(1)(c).

40.27 Prohibitions of Certain Conflicts of Interest

In accordance with KRS 45A.340, the Contractor represents and warrants, and the Commonwealth relies upon such representation and warranty, that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its services. The Contractor further represents and warrants that in the performance of the Contract, no person, including any subcontractor, having any such interest shall be employed.

In accordance with KRS 45A.340 and KRS 11A.040 (4), the Contractor agrees that it shall not knowingly allow any official or employee of the Commonwealth who exercises any function or responsibility in the review or approval of the undertaking or carrying out of this Contract to voluntarily acquire any ownership interest, direct or indirect, in the Contract prior to the completion of the Contract.

40.28 No Contingent Fees

No person or selling agency shall be employed or retained or given anything of monetary value to solicit or secure this Contract, excepting bona fide employees of the Offeror or bona fide established commercial or selling agencies maintained by the Offeror for the purpose of securing business. For breach or violation of this provision, the Commonwealth shall have the right to reject the proposal or cancel the Contract without liability.

40.29 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 shall declare in the Transmittal Letter [see Section 60.6(A) the inclusion of proprietary information and shall noticeably label as proprietary each sheet containing such information. Proprietary information shall be submitted under separate sealed cover marked “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.

40.30 Contract Claims

The Parties acknowledge that KRS 45A.225 to 45A.290 governs contract claims.

40.31 Limitation of Liability

The liability of the Commonwealth related to contractual damages is set forth in

KRS 45A.245.

40.32 Discrimination (Effective April 8, 2015)

Discrimination (because of race, religion, color, national origin, sex, sexual orientation, gender identity, age, or disability) is prohibited. This section applies only to contracts utilizing federal funds, in whole or in part. During the performance of this contract, the contractor agrees as follows:

1. The contractor will not discriminate against any employee or applicant for employment because of race, religion, color, national origin, sex, sexual orientation, gender identity, or age. The contractor further agrees to comply with the provisions of the Americans with Disabilities Act (ADA), Public Law 101-336, and applicable federal regulations relating thereto prohibiting discrimination against otherwise qualified disabled individuals under any program or activity.

The contractor agrees to provide, upon request, needed reasonable accommodations. The contractor will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, religion, color, national origin, sex, sexual orientation, gender identity, age or disability. Such action shall include, but not be limited to the following; employment, upgrading, demotion or transfer;

recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensations; and selection for training, including apprenticeship.

The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non-discrimination clause.

2. The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, religion, color, national origin, sex, sexual orientation, gender identity, age or disability.

3. The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice advising the said labor union or workers' representative of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance.

4. The contractor will comply with all provisions of Executive Order No. 11246 of September 24, 1965 as amended, and of the rules, regulations and relevant orders of the Secretary of Labor.

5. The contractor will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, as amended, and by the rules, regulations and orders of the Secretary of Labor, or pursuant thereto, and…