B40791 ILSOS Utilization Plan updated 1524.docx

ILLINOIS SECRETARY OF STATE

Utilization Plan

Solicitation Description: ILSOS Court of Claim Electronic Filing Management and Case Management Software

Solicitation #: 24-350SOS-COURT-B-40791

BEP Aspirational Goal: 3%

The following is the Utilization Plan and guidelines of the Illinois Secretary of State pertaining to the subject procurement. Please note that the following document differs from the State of Illinois Commission on Equity and Inclusion (CEI). This document should be read in its entirety to ensure compliance.

ILSOS is not only committed to setting BEP goals through this procurement, but also promoting diversity programs within its vendor’s organizations. For questions regarding this document or anything related to the solicitation, please contact Katherine Tople at ktople@ilsos.gov

Utilization Plan Part I: Bidder Signed Commitment

The undersigned Bidder submits this Utilization Plan (U-Plan) as part of its bid or offer in accordance with the requirements of bid solicitation number 24-350SOS-SOS35-B-38495 The solicitation contains a goal that 3% of the value of the contract will be performed by BEP certified vendors registered with the Commission on Equity and Inclusion (CEI) or certified by the City of Chicago or County of Cook.

The U-Plan consists of the following four parts, to be completed and returned as instructed in this Commitment. No alterations or substitutions of this U-Plan will be permitted. A U-Plan should be completed and submitted for any assigned BEP goal:

Part I: Bidder Signed Commitment Part II: Subcontractor Participation Agreement(s) Part III: Good Faith Effort (GFE) (Action Checklist, Contact Log and Supporting Documentation) Part IV: U-Plan Terms and Conditions (Terms and Conditions apply to all available checkbox options below.)

The undersigned Bidder acknowledges that (1) Bidder has read, understands, and agrees to all BEP policies, rules and procedures as defined in the Terms and Conditions in Part IV of this U-Plan and (2) Bidder hereby affirms (select appropriate option(s) below):

· Bidder is a BEP certified firm and will fully meet the goal through self-performance. (If checked, submit this signed Part I Commitment only.)

· Bidder has identified BEP certified subcontractor(s) to fully meet the assigned BEP goal. (If checked, complete and submit the signed Part I Commitment and signed Part II Subcontracting Participation Agreement(s)(PA). A signed PA must be submitted for each subcontractor.)

· Bidder cannot fully meet the goal but has submitted a Good Faith Effort (GFE) and hereby requests a waiver or reduction of the goal to %. (If checked, submit the signed Part I Commitment, completed Part III Good Faith Effort, and if requesting a reduction, the signed Part II Subcontractor Participation Agreement(s).)

The Bidder and subcontractors understand that compliance with all tenets of the U-Plan will become a part of the contract, if awarded. Failure to carry out the requirements of this U-Plan is considered a material breach of the resulting contract, which may result in the termination of the contract or such other remedy as the procuring institution deems appropriate.

Bidder Name and/or d/b/a:

Utilization Plan

Signature: Title: Telephone:

Print: Email Address: Date:

Utilization Plan Part II: Subcontracting Participation Agreement

Instructions: The Bidder is required to submit a separate, signed and fully completed Participation Agreement from each BEP certified vendor. Once signed and submitted with the bid/offer, this Participation Agreement, along with the other Parts of this U-Plan, will become a part of the contract, if awarded. The Bidder shall not prohibit or otherwise limit the BEP certified vendor(s) from providing subcontractor quotes to other potential bidders/offerers.

Solicitation Name: ___________________ Solicitation Number: ____________________

Name of Prime Vendor: ____________________________________________________________ Contact responsible for compliance with this Agreement: _________________________________ Address: ______________________________________City: ____________________ State: _____ Zip: ___________ Telephone: ____________________ Email: ______________________________

Name of BEP Certified Vendor: _______________________________________________________ BEP Contact responsible for compliance with this Agreement: _____________________________ Address: ______________________________________City: ____________________ State: _____ Zip: ___________ Telephone: ____________________ Email: ______________________________

Type of Agreement: ☐ Services ☐ Supplies ☐ Both Services and Supplies

(a) Proposed percentage of contract to be performed by the BEP Certified Vendor % NOTE: The Bidder must indicate the percentage of the estimated contract award that will be subcontracted to the certified BEP Vendor.

(b) Anticipated start date of the Certified BEP Vendor:

(c) This participation agreement shall have a term date from to , with a total period of years and months, including renewals, change orders or extensions to the underlying contract.

(d) Description of work to be performed or goods/equipment to be provided by the BEP certified vendor. All Participation Agreements shall be subject to Agency approval. Any changes involving or affecting the identified BEP certified vendor, scope(s) of work and NIGP Code(s) will not be permitted without notification to the soliciting Agency and BEP Compliance, in writing, and approval of the soliciting Agency. (If more space is needed to fully describe BEP certified firm’s proposed scope of work and/or payment schedule, attach additional sheets)

Statement of Work: Include a detailed description of work to be performed or goods/equipment to be provided by the BEP certified vendor applicable to this procurement. Please provide the information below or provide in a separate document if more room is necessary.

Description of Work:

THE UNDERSIGNED PARTIES FURTHER AGREE that once signed and submitted with the bid/offer, this Participation Agreement, along with the other Parts of this U-Plan, will become a material part of the contract, and the BEP certified vendor will perform the scope of work for the percentage as indicated above. The Undersigned Parties do also certify that they did not affix their signatures to this document until all areas under Description of Service/ Supply and percentage of cost were completed.

Bidder (Company Name and d/b/a): Certified BEP (Company Name and d/b/a):

Signature: Signature:

Print Name: Print Name:

Title: Title:

Date: Date:

Utilization Plan

Utilization Plan Part III: Demonstration of Good Faith Efforts to Achieve Goal And Request For Waiver If the BEP participation goal will not be achieved in whole or part, the Good Faith Efforts Procedures outlined in Parts III and IV of this document will be used to evaluate submitted U-Plans. A Bidder providing Good Faith Effort documentation and a request for waiver must complete and submit Part III of this U-Plan in its entirety in addition to its bid/offer. Failure to submit the Good Faith Effort Contact Log, checklist, and supporting email and phone log documentation in its entirety may render Vendor’s bid or offer non- responsive. All determinations of Good Faith Efforts shall be made by the Chief Procurement Officer for the Agency.

Action Checklist Below is a checklist of actions that will be used to evaluate a Bidder’s Demonstration of Good Faith Efforts to a request for waiver. Check the boxes next to the actions which you have completed. If any of the following actions are not completed, attach a detailed written explanation indicating why such action was not completed. If any other efforts were made to obtain BEP certified vendor participation, in addition to the items listed below, attach a detailed description of such efforts.

· Utilize the website: http://ceibep.diversitysoftware.com/ to locate BEP certified vendors within the NIGP Codes identified in the solicitation. At a minimum, email the resulting listed vendors with the project specifications sufficient to build a quote. Then, solicit quotes from all vendors who express interest with follow-up emails and/or telephone calls. Documentation of these efforts must be submitted as evidence, including copies of all e-mails sent, documented phone calls, messages, and conversations.

· Solicit through all reasonable and available means (e.g., attendance at a vendor conference, advertising, written notices) the interest of BEP certified vendors that have the capability to perform the work of the contract. Bidder must solicit this interest with sufficient advance time of at least 10 business days to allow the BEP certified vendor(s) to respond to the negotiation. Bidder must determine with certainty if the BEP certified vendors are interested by taking appropriate steps to follow up initial solicitations and encourage them to submit a bid or proposal, providing them with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding promptly to the solicitation.

· Select portions of the work applicable to the solicitation to be performed by BEP certified vendors to increase the likelihood that the goal will be achieved. This includes, where appropriate, unbundling contract work items into economically feasible units to facilitate BEP certified vendor participation, even when Vendor might otherwise prefer to perform these work items with its own forces.

· Make a portion of the work available to BEP certified vendors by selecting portions of the work or needed material based on the availability of BEP vendors.

· Negotiate in good faith with interested BEP certified vendors. Evidence of such negotiation may include the contacted names, mailing addresses, email addresses, and/or telephone numbers of BEP certified vendors that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and a statement with the evidence as to why additional agreements could not be reached for BEP certified vendors to perform the work. A Bidder using good business judgment may consider many factors in negotiating with BEP certified vendors and may take a firm’s price and capabilities into consideration. The fact that there may be some additional costs involved in utilizing BEP certified vendors may not, in itself, be a sufficient reason for a Bidder’s failure to meet the goal, as long as such costs are reasonable. Bidders are not required to accept higher quotes from BEP certified vendors if the price difference is excessive or unreasonable.

· Thoroughly investigate the capabilities of BEP certified vendors and do not reject them as unqualified without documented reasons. BEP certified vendors’ memberships in specific groups, organizations, associations, or political/social affiliations are not legitimate causes for the rejection or non-solicitation of bids and proposals in Bidder’s efforts to meet the goal.

GOOD FAITH EFFORTS CONTACT LOG

You MUST use this Good Faith Efforts Contact Log, if you are requesting a Good Faith Effort full or partial goal waiver. The log must document all contacts and responses (i.e., telephone, email, etc.) regarding the solicitation of BEP certified vendors for the scope(s) of work required in the solicitation used to establish the goal for this contract. Copies of all emails sent and received from prospective BEP vendors must be submitted as supporting documentation. Do not use this log to list BEP certified vendors who are identified on the Participation Agreement(s). A list of certified vendors can be found by looking up the NIGP Code(s) on the BEP Vendor Database located at http://ceibep.diversitysoftware.com. Do not limit your contacts to the number of spaces shown below, duplicate the log as necessary.

Agency NIGP Code(s) with description(s):

209-67 – COMPUTER SOFTWARE FOR MINI AND MAINFRAME COMPUTERS (PREPROGRAMMED) Professional: eLearning, Hospital and Pharmacy, Legal, Computer Training, etc., Mainframes and Servers

920-45 – DATA PROCESSING, COMPUTER, PROGRAMMING, AND SOFTWARE SERVICES: Software Maintenance/Support

GOOD FAITH EFFORTS CONTACT LOG

VENDOR:

PERIOD COVERED

to

Certified BEP Vendor Name

Name of Person Contacted

Date

Reason Agreement Was Not Reached

Follow-up Notes

PRIME VENDOR PHONE LOG TEMPLATE

NAME OF PRIME VENDOR:

PERIOD COVERED

to

-up Note

Utilization Plan Part IV: U-Plan Terms and Conditions

DEFINITIONS:

“Agency” shall be defined as the Illinois Secretary of State "Business owned by a person with a disability” or “(PBE)" means a business concern that is at least 51% owned by one or more persons with a disability and the management and daily business operations of which are controlled by one or more of the persons with disabilities who own it. A not-for-profit agency for persons with disabilities as defined in Section 45-35 of the Illinois Procurement Code is also considered a "business owned by a person with a disability."

"Certification" means a determination made by the Council or by one delegated authority from the Council to make certifications, or by a State agency with statutory authority to make such a certification, or by Cook County or the City of Chicago that a business entity is a business owned by a minority, woman, or person with a disability for whatever purpose. A business owned and controlled by women shall be certified as a "woman-owned business". A business owned and controlled by women who are also minorities shall be certified as both a "woman- owned business" and a "minority-owned business".

“Compliance” means that a contractor has correctly implemented the requirements of this Utilization Plan.

“Contractor” means any person or business entity that has entered into a contract with the Agency, and includes all partners, affiliates, and joint ventures of such person or entity.

"Control" means the exclusive or ultimate and sole control of the business including, but not limited to, capital investment and all other financial matters, property, acquisitions, contract negotiations, legal matters, officer-director-employee selection and comprehensive hiring, operating responsibilities, cost- control matters, income and dividend matters, financial transactions and rights of other shareholders or joint partners. Control shall be real, substantial, and continuing, not pro forma. Control shall include the power to direct or cause the direction of the management and policies of the business and to make the day-to-day as well as major decisions in matters of policy, management, and operations. Control shall be exemplified by possessing the requisite knowledge and expertise to run the particular business and control shall not include simple majority or absentee ownership.

"Council" means the Business Enterprise Council for Minorities, Women and Persons with Disabilities "Diverse Firms" shall mean businesses owned by minorities, women, and persons with disabilities.

"Woman" shall mean a person who is a citizen or lawful permanent resident of the United States and who is of the female gender.

"Woman-owned business” or “WBE" means a business concern which is at least 51% owned by one or more women, or, in the case of a corporation, at least 51% of the stock in which is owned by one or more women; and the management and daily business operations of which are controlled by one or more of the women who own it.

"Good Faith Efforts" (GFE) means actions undertaken by a bidder or contractor to achieve the BEP goals set forth in the procurement, that can reasonably be expected to fulfill the program’s requirements.

“Joint Venture” means an association of a diverse firm and one or more other firms to carry out a single, for-profit business enterprise, for which each joint venture partner contributes property, capital, efforts, skills and knowledge, and in which the diverse firm is responsible for a distinct, clearly defined portion of the work of the contract and whose share in the capital contribution, control, management, risks, and profits of the joint venture are commensurate with its ownership interest.

"Minority-owned business” or “MBE" means a business concern which is at least 51% owned by one or more minority persons, or in the case of a corporation, at least 51% of the stock in which is owned by one or more minority persons; and the management and daily business operations of which are controlled by one or more of the minority individuals who own it.

"Minority person" shall mean a person who is a citizen or lawful permanent resident of the United States and who is any of the following:

(a) American Indian or Alaska Native (a person having origins in any of the original peoples of North and South America, including Central America, and who maintains tribal affiliation or community attachment).

(b) Asian (a person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent, including, but not limited to, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam).

(c) Black or African American (a person having origins in any of the black racial groups of Africa). Terms such as "Haitian" or "Negro" can be used in addition to "Black or African American".

(d) Hispanic or Latino (a person of Cuban, Mexican, Puerto Rican, South or Central

(e) American, or other Spanish culture or origin, regardless of race).

(f) Native Hawaiian or Other Pacific Islander (a person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands).

“NIGP Codes” identify the scope(s) of work as defined by the National Institute of Governmental Procurements. The first three digits of the NIGP code represents the Class or broad category of the work to be performed, and the second two digits of the NIGP code identify a more specific focus of work within the Class category.

“Owned” means having all the customary incidents of ownership, including the right of disposition, and the sharing in all risks and profits commensurate with the degree of ownership interest.

"Person with a disability" means a person who is a citizen or lawful resident of the United States and is a person qualifying as being disabled under 30 ILCS 575/2(A)(2.1) .

“Scope of Work” means a narrative description of the goods to be provided and/or services to be performed on the contract.

“Utilization Plan” (U-Plan) means a form and additional appropriate documentation included in all bids or proposals that demonstrates a vendor’s proposed utilization of vendors certified by the Council, Cook County or the City of Chicago to meet the targeted goal. The Utilization Plan shall demonstrate that the Vendor has either: (1) met the entire contract goal or (2) requested a full or partial waiver and made Good Faith Efforts towards meeting the goal.

"Woman" shall mean a person who is a citizen or lawful permanent resident of the United States and who is of the female gender.

"Woman-owned business” or “WBE" means a business concern which is at least 51% owned by one or more women, or, in the case of a corporation, at least 51% of the stock in which is owned by one or more women; and the management and daily business operations of which are controlled by one or more of the women who own it.

This solicitation includes BEP participation goals and, therefore, requires bidders to include a BEP U-Plan. A “Utilization Plan” includes the form on page 1 of this document, with the Participation Agreement and Schedule(s); any additional documentation required in the instructions that demonstrates a commitment to utilizing certified BEP subcontractors to meet the targeted, contract-specific goal, described below; and documentation demonstrating Good Faith Effort when requesting a goal waiver or reduction.

A properly completed BEP U-Plan is due at the time of bid or offer submission.

The contract-specific goal is applicable to the contract, amendments, modifications, extensions, change orders, and allowances. The Bidder’s U-Plan should indicate whether the goal will be met by self-performance or by subcontracting. If a prime vendor subcontracts any portion of a contract to non-BEP certified subcontractors, the amount paid for goods or services delivered by those subcontractors will not be counted toward the goal.

Contract (Specific) Goal to be Achieved by Vendor This solicitation includes a contract-specific BEP participation goal based on certified BEP vendor(s) available to perform anticipated services and/or provide supplies required by this solicitation. The availability of certified BEP vendors was determined, in part, using The Institute for Public Procurement (NIGP Code) codes identified in the Invitation for Bid (IFB), Request for Proposal (RFP), Request for Qualifications (RFQ), or other solicitation documents. MBE, WBE and PBE vendors certified by Cook County or the City of Chicago may also be utilized for this procurement.

The NIGP Code(s) required in the solicitation documents must be entered in Part II: Participation Agreement and Part III: Good Faith Effort Log sections of this U-Plan. Bidders seeking a Good Faith Effort waiver or goal reduction must contact BEP vendors identified for respective NIGP Codes listed in the solicitation documents. Telephone calls are required to BEP vendors who do not respond to Bidders by email. BEP vendors will be given a minimum of 10 business days to respond to the Bidder’s email or phone call. Bidders will need to follow-up with BEP vendors interested in bidding on the contract. If Bidders are unable to engage a BEP vendor in a contract, they must provide appropriate documentation as to why.

The prime vendor must also detail in the Participation Agreement its plan to utilize each BEP subcontractor, including: (a) the proposed percentage of the contract to be performed by each BEP subcontractor; (b) the anticipated start date for each BEP subcontractor; (c) the anticipated dates and time periods of utilization of each BEP subcontractor; and (d) a detailed description of the work to be performed by each BEP subcontractor.

This U-Plan must demonstrate that the prime vendor has either: (1) met the entire contract goal; or (2) requested a full waiver and made Good Faith Efforts towards meeting the entire goal; or (3) requested a goal reduction and made Good Faith Efforts towards meeting a portion of the goal. Submission of Good Faith Effort log and appropriate documentation by the Bidder shall be considered as a request for a full or partial goal waiver.

For a U-Plan to be considered, at the time of bid or offer, the submitting prime BEP Bidder, if self- performing, or non-BEP submitting prime vendor’s proposed BEP subcontractor(s), must be BEP certified with the State of Illinois, Cook County or the City of Chicago.

1. Joint Venture Where there is a joint venture between a certified and non-certified vendor, the U-Plan must include an executed Joint Venture Agreement specifying the terms and conditions of the relationship between the parties and their rights and responsibilities to the prospective contract. The Joint Venture Agreement must clearly evidence that the BEP certified vendor will be responsible for a defined portion of the work and its responsibilities, risks, profits, contributions of capital, and personnel are proportionate to its ownership/interest percentage, as well as identifying the appropriate and specific NIGP Code(s). It must include specific details related to the parties’ contributions of capital, personnel, equipment, share of costs, insurance coverage, and other items; the scopes to be performed by BEP certified vendor(s) under its supervision; and the commitment of management, supervisory personnel, and operative personnel employed by the BEP certified vendor to be dedicated to the performance of the contract. Established Joint Venture Agreements will only be credited toward BEP goal achievements for specific work performed by the BEP Certified Joint Venture Vendor. If the joint venture is submitting a bid as a prime vendor, each party to the Joint Venture Agreement must execute the bid or offer prior to submission of the bid or offer to the Agency.

2. BEP Vendor Freedom to Work with Other Vendors An agreement between a prime vendor and a BEP certified vendor in which a BEP certified vendor promises not to provide subcontracting or pricing quotations to other vendors is prohibited. The Agency may request additional information to demonstrate compliance. Vendor agrees to cooperate promptly with the Agency in submitting to interviews, allowing entry to business places, providing documentation, and to soliciting the cooperation of a proposed BEP certified vendor during investigation. Failure to cooperate by a Bidder and/or BEP certified vendor may render the bidder non-responsive or not responsible. A contract will not be awarded to a Bidder unless that Bidder ’s U-Plan is found responsive.

3. BEP Vendor Locator References Firms must be certified by the State of Illinois as BEP certified vendors at the time of bid or certified by Cook County or the City of Chicago. Bidders may consult the CEI BEP Vendor Directory at https://ceibep.diversitysoftware.com/ for State of Illinois certified vendors

4. Vendor Assurance Vendor shall not discriminate based on race, color, national origin, sexual orientation, or sex in the performance of this contract. Failure by the Bidder to carry out these requirements is a material breach of the contract. which may result in the termination of the contract or such other remedy, as the Agency deems appropriate.. This assurance must be included in each subcontract that the Bidder sign with a subcontractor or supplier

5. Calculating BEP Certified Vendor Participation The U-Plan and Participation Agreement(s) identify work and/or goods/equipment anticipated to be provided by all BEP certified vendors and paid for upon satisfactory completion/delivery, based on work related to this solicitation. Only the value of payments made for services performed and/or actual supplies/goods/equipment provided by BEP certified vendors is counted toward the contract goal.

5.1 The value of performed work and/or goods/equipment provided by the BEP certified vendor for the resulting contract shall be counted towards the goal. The entire amount of that portion of the contract that is performed by the BEP certified vendor, including supplies purchased or equipment leased by the BEP certified vendor shall be counted, except supplies purchased and equipment rented from the prime vendor submitting this bid or offer.

5.2 A BEP certified bidder shall count the portion of the total dollar value of the contract equal to the distinct, clearly defined portion of the work of the contract that the BEP certified prime vendor certified prime vendor self-performs toward the goal. A BEP certified prime vendor shall also count the dollar value of work subcontracted to other BEP certified vendors. Work performed by non- BEP certified parties shall not be counted toward the goal, including work that a BEP/VBP certified vendor subcontracts to non-BEP certified vendors.

5.3 BEP certified vendors who are performing on a contract as second-tier subcontractors (i.e., subcontractors hired by first-tier subcontractors to perform on the contract) may be counted in meeting the established BEP goal for this contract where the Prime Bidder will provide monthly documentation indicating the utilization of these.

5.4 A vendor shall not count towards the goal expenditures that are not direct, necessary and related to the work of the contract. Only the dollar amount of services and/or goods that are directly attributable to the performance of the contract shall be counted. Ineligible expenditures include, but are not limited to, general office overhead and other Vendor support activities, unless allowed by the Agency.

6. Good Faith Effort (GFE) Procedures Bidders should submit in their bid a U-Plan and Participation Agreement(s) that meet or exceed the published goal. If a Bidder cannot meet the stated goal, it must fill out and attach Part III of this document, explaining the Good Faith Efforts it undertook to meet the goal, including contacting certified BEP vendors that fall under the scope(s) of work identified in the solicitation documentation. U-Plans and attached documentation are due at the time of bid or offer submission. The Chief Procurement Officer of the Agency will consider the quality, quantity, and intensity of the Bidder’s efforts to meet the BEP goal.

The U-Plan contains a checklist of actions that the Agency will consider as evidence of Bidder's Good Faith Efforts to meet the BEP goal..

Documentation that alters or replaces the U-Plan and/or Participation Agreement(s), other than supplemental documentation, may not be considered during the U-Plan review.

6.1 In evaluating a Bidder’s Good Faith Efforts, the Agency may consider whether the ability of other bidders to meet the contract goal suggests that Good Faith Efforts could have resulted in a Bidder meeting the goal.

6.2 If the Agency determines that a Bidder has made Good Faith Efforts to meet the BEP goal, the Agency may award the contract provided that the Bidder is otherwise eligible for award.

6.3 If the Agency determines that Good Faith Efforts have not been met, the bid or offer may be determined to be non-responsive by Agency’s Chief Procurement Officer.

7. Contract Compliance Compliance with this section is an essential part of the contract. The following administrative procedures and remedies govern a Bidder’s compliance with the contractual obligations established by the U-Plan and Participation Agreement(s). After approval of the U-Plan and Participation Agreement(s) as well as the award of the contract, the U-Plan, including all applicable Parts, becomes part of the contract. If a prime vendor requested a full or partial waiver due to its inability to obtain BEP certified vendor participation equal to or exceeding the goal, and the U-Plan was deemed responsive and contract awarded based upon a determination of Good Faith Effort, the total dollar value of BEP certified vendor work in the approved U-Plan, calculated as a percentage of the total awarded contract value, shall become the final contract goal.

7.1 The U-Plan and Participation Agreement(s) may not be amended after contract execution without Agency prior written approval.

7.2 A Bidder may not make modifications to its contractual BEP certified vendor commitments or substitute BEP certified vendors without prior written Agency approval. Unauthorized modifications or substitutions, including performing the work designated for a BEP certified vendor with a Bidder’s own forces, shall be a violation of the U-Plan and therefore a breach of the contract, cause to terminate the contract, and cause to seek other contract remedies or sanctions, at the sole discretion of the Agency. For Agency approval of modifications or substitutions, the facts supporting the modifications or substitutions must not have been known nor reasonably should have been known by the parties prior to entering into the contract and/or subcontract. Bidder must negotiate with BEP certified vendors to resolve problems. Where there has been a mistake or disagreement about the scope of work and/or goods/equipment required by the contract, the BEP certified vendor can be substituted, but only where agreement cannot be reached for a reasonable price or schedule for the correct scope of work, goods and/or equipment. Any subsequent change must be submitted to the Agency, in writing, and approved by the Agency.

7.3 Substitutions of a BEP certified vendor may be approved in certain circumstances including, but not limited to, the following examples:

7.3.1 Unavailability after receipt of a reasonable notice to proceed;

7.3.2 Failure of performance;

7.3.3 Financial incapacity;

7.3.4 Refusal by the BEP certified vendor to honor the bid or proposal price or scope;

7.3.5 Material mistake of fact or law about the elements of the scope of work of a contract where a reasonable price cannot be agreed upon;

7.3.6 Failure of the BEP certified vendor to meet insurance, licensing, or bonding requirements, as applicable;

7.3.7 The BEP certified vendor's withdrawal of its bid or offer; and/or

7.3.8 Failure of the BEP certified vendor to maintain certification.

7.4 If it becomes necessary to substitute a BEP certified vendor, the prime vendor must notify the Agency, in writing, of the request to substitute a BEP certified vendor or otherwise modify the U-Plan and Participation Agreement(s). The request must state specific reasons for the substitution or modification. The Agency will approve or deny a request for substitution or other change in the U-Plan and/or Participation Agreement(s) within five (5) business days of receipt of the request.

7.5 Where the Bidder has established the basis for the substitution to the satisfaction of the Agency, Bidder must make Good Faith Efforts to meet the contract goal by substituting one or more BEP certified vendors to satisfy the vacant goal. The Bidder may also choose to assign that goal percentage to another BEP subcontractor. Documentation of a replacement BEP certified vendor, or of Good Faith Efforts to replace the BEP certified vendor, must be submitted with the written request for substitution and meet the requirements of the initial U-Plan. If the goal cannot be reached and Good Faith Efforts have been made, the Bidder may substitute with a non-BEP certified vendor upon approval from the Agency.

7.6 Prime vendors are encouraged to utilize BEP certified firms. If a Bidder plans to hire a subcontractor for any scope of work that was not previously disclosed in the U-Plan, the Bidder must meet the BEP participation goal for the added scope of work and obtain the approval of the Agency to modify the U-Plan.

7.7 If the prime vendor wishes to substitute its BEP certified subcontractor, a BEP certified vendor U-Plan and Participation Agreement must be executed and submitted to the Agency within five (5) business days of the Bidder ’s receipt of the Agency’s approval of the substitution.

7.8 Bidder shall maintain a record of all relevant data with respect to the utilization of BEP certified vendors including, but not limited to, payroll records, invoices, canceled checks and books of account for a period of at least three (3) years after the completion of the contract. The Bidder shall submit monthly reports to the Chief Procurement Officer of the Agency, or designee. Full access to these records shall be granted by the Bidder within 48 hours of a written demand by the Agency, or any duly authorized representative thereof. The Agency shall have the right to obtain from Bidder any additional data reasonably related or necessary to verify any representations by Bidder.

7.9 After the performance of the final item of work or delivery of material by the BEP certified vendor and final payment to the BEP certified vendor by Bidder, but not later than thirty (30) calendar days after such payment, Vendor shall submit to the Chief Procurement Office of the Agency, or designee, a statement confirming the final payment and the total payments made to the BEP certified vendor under the contract Bidder’s failure to report monthly shall constitute a material breach of this contract and may subject Bidder to the remedies and penalties described in Sections 7.10 and 7.11. The prime vendor and BEP subcontractors will receive notification and instructions after the start of the contract for reporting BEP compliance.

7.10 The Agency will annually review the Bidder’s compliance with these provisions and the terms of its contract. The Agency will review contractual language regarding cancellation of contracts deemed not to be compliant with the BEP. Without limitation, Bidder’s failure to comply with these provisions or its contractual commitments as contained in the U-Plan and Participation Agreement(s); failure to cooperate in providing information regarding its compliance with these provisions or its U-Plan; or provision of false or misleading information or statements concerning compliance, certification status or eligibility of a BEP certified vendor, Good Faith Efforts or any other material fact or representation shall constitute a material breach of this contract and entitle the Agency to declare a default, terminate the contract, and/or exercise those remedies provided for in the contract, law and equity.

7.11 The Agency reserves the right to withhold payment to the Bidder to enforce these provisions and Vendor’s contractual commitments. Final payment shall not be made pursuant to the contract until the Bidder submits sufficient documentation demonstrating compliance with its U-Plan and Participation Agreement(s).