Bid Submission Requirements, General Information, Terms and Conditions - 1.31.251.pdf

The State University of New York at Buffalo Bid Submission Requirements, General Information, Terms and Conditions

BID SUBMISSION REQUIREMENTS

1. In accordance with the requirements of New York State Finance Law Sections 139j and 139k (“Lobbying Law”), the restricted period for this procurement is now in effect.

Therefore, all communications regarding this procurement must be handled through the State University of New York’s designated contacts only.

2. Proposals should be prepared in such a way as to provide straightforward, concise and specific information about the scope of services your agency is able and willing to provide. Emphasis should be placed on responsiveness to the University’s desired services and goals. Each response should reference the number of the corresponding question.

3. Proposals may be withdrawn or modified by written request from the bidder at any time prior to the deadline for receipt of proposals.

4. In the event a Bidder’s proposal is determined by UB to be “non-responsive,” UB is required by its contracting procedures to disqualify the proposal. A disqualified proposal will not be further evaluated or considered for contract award.

5. Upon notice of award, the awarded bidder may be required to provide original, wet signatures for all applicable documents. The University and the awarded bidder will coordinate logistics if this is applicable. The University reserves the right to negotiate with a bidder within the bid’s requirements, to best serve the interests of the University.

6. All prices must be included in the University at Buffalo’s Shopblue Sourcing

Module and presented on the Items tab. The University at Buffalo will consider final pricing submitted in the Items tab. Prices not included in the Items tab will be rejected. Price proposals must be based on the terms, conditions and commitments set forth in the Request for Proposal documents provided to Bidder.

7. The submission of a proposal constitutes a non-revocable, binding offer to perform and provide said services. Such binding offer shall be firm and not revocable for a period of one hundred twenty (120) days from bid opening. After one hundred twenty (120) days, the proposal may remain in effect, subject to withdrawal communicated in writing signed by the Bidder. If this RFP is for the sale of goods pursuant to §2-205 of New York State Uniform Commercial Code, the proposal shall be firm, binding and not revocable for a period of ninety (90) days.

8. Bidder is responsible for all costs that it incurs, direct or indirect, related to the preparation and submission of a proposal in response to this RFP.

9. Proposals, subject to the terms, conditions and specifications herein, will be received in the University at Buffalo’s Shopblue Sourcing system and duly recorded. Emailed, faxed, and late bids will not be accepted.

10. By submitting a proposal, the firm agrees that it will neither make any claims for nor assert any right to, damages because of any misunderstandings or lack of information.

A. MINOR IRREGULARITIES

Bids that contain minor irregularities, such as those submitted without a proper Bid Security, or in the wrong form, or executed improperly, shall be considered informal.

Informal proposals may be considered in selecting a low bidder where the public interest will be promoted thereby.

B. EXTRANEOUS TERMS

MODIFICATION OF CONTRACT TERMS / ADDITIONAL OR ALTERNATIVE TERMS

AND CONDITIONS IN AN AUTHORIZED USER AGREEMENT

a. The terms and conditions set forth in the RFP shall govern all transactions by Authorized Users under this Contract. The Contract may be modified or amended only upon mutual written agreement of the University and Contractor, and the Attorney General and the Office of the State Comptroller, if applicable.

b. Additional or Alternative Terms and Conditions in an Authorized User Agreement. A Contractor can propose additional or alternative terms and conditions for a specific Authorized User transaction only in the response to the RFP. A Contractor cannot require an Authorized User to agree to additional or alternative terms and conditions as a condition to the Contractor submitting a response to an Authorized User RFP.

Additional or alternative terms and conditions may, in the discretion of the Authorized User, be allowed as part of a Contractor’s response to an Authorized User RFP and incorporated into the Authorized User Agreement provided that all of the following conditions are met:

(i) The Contractor identifies where such additional or alternative terms and conditions may be found in Contractor’s response to the Authorized User RFP;

Additional or Alternative Terms and Conditions can be uploaded in the Deviations to Terms and Conditions Excel Template, located in the Buyer Attachments.

Bidder can complete this form and reupload to Supplier Attachments.

(ii) The Authorized User determines that the inclusion of such additional or alternative terms and conditions results in a transaction which is, on an overall basis, more favorable to the Authorized User than if the transaction did not include such additional or alternative terms and conditions.

(iii) The Authorized User accepts such additional or alternative terms and conditions.

c. Notwithstanding subparagraph b above, no additional or alternative term and condition shall be valid or binding on the Authorized User to the extent that such additional or alternative term and condition is less favorable to the Authorized User than, or conflicts with, any of the following provisions: All provisions of Exhibit A SUNY Standard Contract Clauses, all provisions of Exhibit A-1 SUNY Affirmative Action Contract Clauses, and Exhibit B SUNY General Contract Terms and Conditions sections 25 (Termination), 7 (Security), 15 (Indemnification), 15 (Indemnification Relating to Infringement), 15 (Limitation of Liability); and the RFP insurance requirements.

d. No additional or alternative terms and conditions may be incorporated by the Contractor into an Authorized User Agreement by unilaterally affixing them to the Product upon delivery (including, but not limited to, attachment or inclusion of standard pre-printed order forms, product literature, “shrink wrap” terms accompanying software upon delivery, or other documents) or by incorporating such terms and conditions onto order forms, hyperlinks within documents, posted website terms and conditions, purchase orders or other documents forwarded by the Contractor for payment, notwithstanding Authorized User’s subsequent acceptance of Product, or that Authorized User has subsequently processed such document for approval or payment.

e. Nothing herein shall be deemed to prohibit a Contractor from offering an Authorized User better and more advantageous pricing and terms and conditions during the term of an Authorized User Agreement.

C. NO CLAIMS OR RIGHTS

By submitting a proposal, Bidder agrees that it will not make any claims for, or have any right to damages because of any misinterpretation or misunderstanding of the specifications or because of any misinformation or lack of information.

D. CONFLICT OF INTEREST

Bidder may be requested to provide evidence that the award of a contract will not result in (i) a conflict of interest with regard to other work performed by Bidder; or (ii) a potential conflict of interest among Bidder’s staff.

GENERAL INFORMATION

A. UB’S RESERVED RIGHTS

UB reserves the right to:

1. Reject any and all proposals received in response to this RFP.

2. Reject any or all portions of any proposal, to negotiate terms and conditions consistent with this RFP and to make an award for any or all remaining portions.

3. Withdraw the RFP at any time, at UB’s sole discretion.

4. Disqualify any Bidder whose conduct and/or proposal fails to conform to the requirements of the RFP.

5. Use proposal information obtained through site visits, management interviews and the state’s investigation of a Bidder’s qualifications, experience ability or financial standing, and any material or information submitted by the Bidder and/or in response to UB’s request for clarifying information, during evaluation and/or selection under the RFP.

6. Prior to the bid opening, amend the RFP specifications to correct errors of oversights, or to supply additional information, as it becomes available.

7. Request certified audited financial statements for the past three (3) completed fiscal years and/or other appropriate supplementation including, but not limited to, interim financial statements and credit reports.

8. Request references and contact any or all references at our convenience.

9. Adjust or correct cost or cost figures with the concurrence of the Bidder if mathematical errors exist.

10. Waive requirements or amend this RFP upon notification to all Bidders. Mandatory requirements may be eliminated if unmet by all Bidders.

11. Negotiate with Bidders responding to this RFP within the requirements necessary to serve the best interests of UB.

12. Begin contract negotiations with another Bidder in order to serve the best interests of UB should contract negotiations with the Successful Bidder be unsuccessful within a time frame acceptable to UB.

13. Request clarifications from Bidders for purposes of assuring a full understanding of responsiveness, and permit revisions from all potential awardees prior to award.

14. Make a contract award in whole or in part.

15. Award no contract.

B. METHOD OF AWARD

This RFP is part of a competitive procurement process designed to serve the best interests of the State University of New York and the People of the State of New York.

It is also designed to provide all bidders with a fair and even opportunity to have their services considered. UB will conduct a comprehensive review of each responsive bid submitted in accordance with the terms of this RFP. Proposals will be evaluated on the basis of “best value” by an evaluation committee comprised of University at Buffalo representatives, and shall be conducted in the following steps:

1. Administrative Review Each proposal received by the due date and time will be screened for completeness of submission.

2. Minimum Bidder Qualifications/Bidder References Each proposal remaining after Administrative Review will advance to their reference checks. Information provided in the proposal will be used to validate Minimum Bidder Qualifications and SUNY reserves the right to contact client references to validate required experience. It is the vendor’s responsibility to ensure all Reference information is accurate and up to date.

3. Technical/Functional Evaluation Each proposal remaining after Minimum Bidder Qualifications/Bidder References will advance for review and independent evaluation and scoring by the review evaluation committee.

4. Financial Evaluation The Financial Proposals of each bid remaining after the Technical Evaluation will be independently evaluated and scored by the Procurement Department.

5. Shortlisting for Proof of Concept Bidders receiving the highest score and any vendor that is susceptible to award after the preliminary technical and cost scores may be invited to make a virtual presentation to discuss their proposal. If such presentations are to be held, the University at Buffalo will notify the Bidders and schedule the time and agenda including a virtual presentation invite. The presentation will provide an opportunity for these bidders to clarify or elaborate on their proposals but shall in no way change their original proposals. The demonstration will be evaluated and scored by the Evaluation Committee. All costs associated with the Bidder’s Proof of Concept will be borne by the Bidder.

It is expected that vendor representatives are thoroughly knowledgeable about functionality, electronic accessibility, and technical specifications about the product.

6. Selection Proposals will be evaluated based on “best value” by an evaluation committee comprised of University at Buffalo representatives, utilizing an evaluation methodology that considers the following factors in the chart below:

Technical Proposal 70 points Total Solution Price 30 points

Total 100 points

Technical Proposal Points

Technical Response 60 Vendor Proof of Concept 10

The Bidder earning the highest final composite score (technical and financial) will be selected to contract with the University at Buffalo and will be notified by the University at Buffalo in writing. Tentative award of the contract shall consist of written notice of the contract award by the University at Buffalo to the successful bidder, who shall thereupon be obligated to execute a formal contract.

C. CONTRACT AWARD

Receipt of this RFP does not indicate that UB has predetermined Bidder’s qualifications to receive a contract award. A contract award, if made, shall be based on evaluation of the bid in accordance with the criteria set forth in this RFP. The successful Bidder will be notified by UB by letter.

D. TERM OF AGREEMENT/CONTRACT TERM

The successful bidder(s) will enter into a formal written agreement with the University, based upon the terms and specifications listed within this RFP. The University at Buffalo is looking for a five (5) year contract.

E. NON-EXCLUSIVE AGREEMENT

The contract resulting from this Request for Proposal (RFP) will be non-exclusive. The University at Buffalo reserves the right, at its sole discretion, to engage other vendors or service providers as needed.

F. POST AWARD PROCEDURES

1. Debriefing

Bidders who responded to this RFP will be given written notice as to whether their bid was successful or unsuccessful. Upon being notified of their unsuccessful bid, Bidders may request a debriefing in writing within 15 calendar days of such notice. The 15 day period starts once unsuccessful Bidders are notified. Upon a Bidder’s request for a debriefing:

a. The University will schedule the debriefing within a reasonable time of such request.

b. The debriefing will be conducted in person with the Bidder, unless the University and the Bidder mutually agree to use another method such as by telephone, video conference or another type of electronic communication.

c. Bidders’ written request must state whether the Bidder will be attending with counsel, to allow the University to arrange for University counsel attendance if so determined.

d. The debriefings will cover, but not limited to the following:

i. The reason why the bid was unsuccessful.

ii. The quantitative and qualitative analysis that was used by the campus to assess the relative merits of the bid, proposal or offer.

iii. How the selection criteria was applied to the unsuccessful bid.

iv. If the request for debriefing is made prior to contract award, the debriefing shall be limited to review of that Bidder’s bid.

v. If the debriefing is held after the final award (which means OSC approval, if applicable) it, may cover the reason for the selection of the winning proposal.

vi. To the extent practicable, general advice and guidance on the ways the Bidder can improve future proposal submission or be more responsive.

2. Contract Award Protest Procedures

Bidders wishing to protest a contract award may do so in accordance with the University’s procedures, available at:

http://www.suny.edu/sunypp/documents.cfm?doc_id=699.

G. INFORMATION REGARDING TECHNOLOGY SOFTWARE SECURITY AND RISK

The University at Buffalo (UB, university) is committed to protecting the confidentiality, integrity, and availability of data important to the university’s mission. Software applications may have the ability to transmit, process, or store university data on a software platform or service. Software applications must have formal university approval to prevent the unintended disclosure of protected or restricted university data.

By submitting a Proposal, Proposer warrants that software products included in the Proposal shall conform to SUNY 6608 Policy: As SUNY is responsible for the data entrusted in its possession, all vendors handling, processing, transmitting, and storing SUNY data must undergo a risk assessment to ensure all vendors are securing SUNY data in accordance with SUNY policy and industry best practice.

To meet the standards set forth by SUNY 6608 Policy the University at Buffalo is standardizing on the use of the HECVAT 3.04 (Lite or Full), or current version, (Higher Education Community Vendor Assessment Toolkit), created by Higher Education Information Security Council (HEISC).

https://library.educause.edu/resources/2020/4/higher-education-community-vendor-assessment-toolkit

H. INFORMATION REGARDING EIT ACCESSIBILITY

The University at Buffalo is committed to providing an accessible, usable and integrated experience for all its students, faculty, staff and community. Electronic and information technology (EIT) consists of information technology and any equipment or interconnected system or subsystem of equipment that is used in the creation, conversion or duplication of data or information that will be deployed in connection with such technology, equipment or systems. Further, EIT includes, but is not limited to, telecommunications products, information kiosks and transaction machines, Internet and Intranet websites, web-delivered content, software, applications, electronic books and electronic book reading systems, search engines and databases, multimedia, classroom technology, and office equipment.

By submitting a Proposal, Bidder warrants that (i) web-based EIT products included in the Proposal shall conform to the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG) 2.1 Level AA success criteria and (ii) non-web-based EIT products included in this Proposal shall meet or exceed the applicable accessibility requirements of section 508 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.

If a Bidder’s solution is determined to be high impact AND determined to be a complete barrier to use the product as intended, the University’s EIT Accessibility Officer has the right to make a determination at his/her own discretion to non-award to that Bidder or consider accommodation if appropriate per the University's Electronic and Information Technology Accessibility Policy.

http://www.suny.edu/sunypp/documents.cfm?doc_id=699 https://library.educause.edu/resources/2020/4/higher-education-community-vendor-assessment-toolkit https://library.educause.edu/resources/2020/4/higher-education-community-vendor-assessment-toolkit

TERMS AND CONDITIONS

A. ACCEPTANCE OF RFP CONTENT

The terms and conditions included in this RFP as well as the applicable portions of Bidder’s proposal shall become contractual obligations if a contract is awarded.

EXHIBITS AND ORDER OF PRECEDENCE OF RESULTING CONTRACT

The following documents will be incorporated into, and made part of, the contract awarded in this order:

1. Exhibit A, State University of New York Standard Contract Clauses

2. Exhibit A-1, State University of New York Affirmative Action Clauses (for contracts valued at greater than $25,000)

3. The Agreement

4. Exhibit B, State University of New York General Contract Terms and Conditions

5. Exhibit C, this RFP

6. Exhibit D, the Successful Bidder’s proposal

7. Exhibit E, the Successful Bidder’s Cost Proposal

8. [IF APPLICABLE], Exhibit F, Service Level Agreement

In the event of any inconsistency in or conflict among the document elements described above, such inconsistency or conflict shall be resolved by giving precedence to the document elements in the order set forth above.

B. STANDARD CONTRACT CLAUSES

Any contract awarded resulting from this RFP must include Exhibit A (State University of New York Standard Contract Clauses) and Exhibit B (State University of New York General Contract Terms and Conditions) and, for contracts in excess of $25,000, Exhibit A-1 (State University of New York Affirmative Action Clauses). The provisions of Exhibit A and Exhibit A-1 shall take precedence over any provision in this RFP or any provisions in the contract awarded. Exhibits A, A-1, and B are attached to this RFP.

C. BINDING EFFECT

The contract awarded shall be binding upon its execution by both parties and, if required by New York State law, upon the written approvals of the Attorney General and the Office of the State Comptroller.

D. SERVICES OUTSIDE THE SCOPE OF CONTRACT AWARD

UB shall not be responsible for any services provided by the successful Bidder that are outside the scope of the contract awarded. UB shall not be responsible for any additional costs other than the costs for the services outlined herein, or for any work performed that has not been properly authorized in writing by UB.

E. CONFIDENTIALITY/FREEDOM OF INFORMATION LAW

All proposals submitted for UB’s consideration will be held in confidence and will become the property of UB. However, the resulting contract is subject to the New York State Freedom of Information Law (FOIL), contained in Article 6 of the New York State Public

Officer’s Law. Therefore, if a Bidder believes that any information in its proposal constitutes a trade secret, should be treated as confidential and should not be disclosed upon a request pursuant to FOIL, Bidder shall submit with its proposal a separate letter addressed to: Campus Records Access Officer specifically (i) identifying the page number(s), line(s) or other appropriate designation(s) containing such information; (ii) explaining in detail why such information is a trade secret or confidential; and (iii) formally request that such information be held as confidential. Bidder’s failure to submit such a letter with its proposal will constitute a waiver by the Bidder of any rights it may have under Section 89(5) of the Public Officers' Law relating to protection of trade secrets. The proprietary nature of the information designated confidential by the Bidder may be subject to disclosure if ordered by a court of competent jurisdiction. A request that an entire proposal be kept confidential is not advisable, because a proposal cannot reasonably consist exclusively of proprietary information.

F. MINORITY AND WOMEN-OWNED AND SERVICE-DISABLED VETERAN-OWNED

BUSINESSES

It is the policy of the State University of New York to take affirmative action to ensure that minority and women-owned business enterprises are given the opportunity to demonstrate their ability to provide goods and services at competitive prices.

GOALS FOR MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES

PARTICIPATION: For all State Contracts in excess of $25,000.00 whereby each SUNY campus is committed to expend or does expend funds in return for labor, services including but not limited to legal, financial and other professional services, supplies, equipment, materials or a combination of the foregoing or all State Contracts in excess of $100,000.00 whereby the SUNY campus expects to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon, Contractor shall exert good faith efforts to achieve a participation goal of zero percent (17.9%) for certified Minority-Owned Business Enterprises and zero percent (12.1%) for certified Women-Owned Business.

For more information on the New York State Division of Minority and Women’s Business Development and a directory of NYS-certified MWBE Businesses that may be able to assist with good faith efforts in achieving participation goals see:

https://esd.ny.gov/doing-business-ny/mwbe

G. SERVICE DISABLED VETERAN-OWNED BUSINESS

SUNY is committed to the State's policy of encouraging the development of service-disabled veteran-owned businesses (SDVOB). The Service-Disabled Veteran-Owned Business Act (the “Act”) became effective on May 12, 2014, and SUNY has implemented the State's comprehensive plan and operational guidelines to promote SDVOBs and to assist them in obtaining opportunities to participate in the procurement of goods and services by the State. SUNY will employ applicable measures and procedures provided by the Director of the Division of Service-Disabled Veterans' Business Development in the Office of General Services (the "Division"), to ensure that SDVOBs are afforded the opportunity for meaningful participation in the performance of SUNY's contracts and to https://esd.ny.gov/doing-business-ny/mwbe assist in achieving the Act’s statewide goal for participation on state contracts by SDVOBs. The awarded contract shall provide that any contractor who willfully and intentionally fails to comply with the SDVOB participation requirements shall be liable to SUNY for damages, calculated based on costs for administration of SUNY’s SDVOB program.

For additional information please refer to the SDVOB requirements outlined in SDVOB Prospective Bidder’s Notice (Forms 7564-121A, 7564-121B and 7564-121C). A SDVOB Utilization Plan must be submitted with all bids, utilizing Form 7564-107. All Forms are available at: http://www.suny.edu/sunypp/documents.cfm?doc_id=816.

Bidders are encouraged to apply to the Division for certification as a Service-Disabled Veteran-Owned Business, and to provide such documentation necessary to establish their status as such in accordance with the rules of the Director of the Division. For purposes of this solicitation, SUNY hereby establishes an overall goal of 6% for SDVOB participation.

H. OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS

This Contractor and Subcontractor shall abide by the requirements of 41 C.F.R. §§ 60- 300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.

I. GOVERNING LAW

This RFP, Bidders’ proposals and any resulting contract shall be governed, construed and enforced in accordance with the laws of the State of New York, excluding New York’s choice of law principles in a New York court of competent jurisdiction.

Bidder/Contractor agrees to submit itself to such court’s jurisdiction.

J. OMNIBUS PROCUREMENT ACT OF 1992

It is the policy of New York State to maximize opportunities for the participation of New York State business enterprises, including minority and women-owned business enterprises as bidders, subcontractors and suppliers on its procurement contracts.

Information on the availability of New York State subcontractors and suppliers and a directory of minority and women-owned business enterprises is available from:

NYS Empire State Development Website: https://esd.ny.gov/doing-business-ny/small-business-hub Division for Small Business 625 Broadway, Albany, NY 12207 Phone: 1-800-782-8369 Email: nylovessmbiz@esd.ny.gov

K. DETERMINATION OF VENDOR RESPONSIBILITY

New York State procurement law requires that state agencies award contracts only to responsible contractors. Additionally, the New York State Comptroller must be satisfied http://www.suny.edu/sunypp/documents.cfm?doc_id=816 https://esd.ny.gov/doing-business-ny/small-business-hub mailto:nylovessmbiz@esd.ny.gov that a proposed contractor is responsible before approving a contract award under Section 112 of the State Finance Law. Section 163 of the New York State Finance Law (“SFL”) requires that contracts for services and commodities be awarded on the basis of lowest price or best value “to a responsive and responsible bidder.” Section 163 (9) (f) of the SFL requires that prior to making a contract award, each contracting agency shall make a determination of responsibility of the proposed contractor.

In accordance with these procurement laws, SUNY will conduct an affirmative review of vendor responsibility for all organizations or firms with which it conducts business. In doing so, bidders are required to file the required Vendor Responsibility Questionnaire online via the New York State VendRep System or may choose to complete and submit a paper questionnaire. To enroll in and use the VendRep System, see the VendRep System Instructions on the Office of State Comptroller (OSC) website, available at:

www.osc.state.ny.us/vendrep or go directly to the VendRep System online at https://www.osc.ny.gov/state-vendors/vendrep/vendrep-system . For VendRep System user assistance, the OSC Help Desk may be reached at 866- 370-4672 or 518-408-4672 or by email at helpdesk@osc.state.ny.us. Bidders opting to file a paper questionnaire may obtain the appropriate questionnaire from the VendRep website www.osc.state.ny.us/vendrep or may contact SUNY System Administration for a copy of the paper form.

In addition:

1. General Responsibility. The Contractor shall at all times during the contract awarded term remain responsible. The Contractor agrees, if requested by the SUNY Chancellor or his or her designee, to present evidence of its continuing legal authority to do business in New York State, integrity, experience, ability, prior performance, and organizational and financial capacity.

2. Suspension of Work for Non-Responsibility. The SUNY Chancellor, in his or her sole discretion, reserves the right to suspend any or all activities under the contract awarded, at any time, when he or she discovers information that calls into question the responsibility of the Contractor. In the event of such suspension, the Contractor will be given written notice outlining the particulars of such suspension. Upon issuance of such notice, the Contractor must comply with the terms of the suspension order. Contract activity may resume at such time as the SUNY Chancellor or his or her designee issues a written notice authorizing a resumption of performance of the contract awarded.

3. Termination for Non-Responsibility. Upon written notice to the Contractor and a reasonable opportunity to be heard with appropriate SUNY and/or UB officials or staff, the contract awarded may be terminated by the SUNY Chancellor or his or her designee at the Contractor’s expense, where the Contractor is determined by the SUNY Chancellor or his or her designee to be non-responsible. In such event, the SUNY Chancellor or his or her designee may complete the contractual requirements in any manner he or she may deem advisable and pursue available legal or equitable remedies for breach.

http://www.osc.state.ny.us/vendre https://www.osc.ny.gov/state-vendors/vendrep/vendrep-system mailto:helpdesk@osc.state.ny.us http://www.osc.state.ny.us/vendrep

L. NEW YORK INFORMATION BREACH AND NOTIFICATION REQUIREMENTS

Contractor hereby acknowledges and agrees to use commercially reasonable efforts to maintain the security of private information (as defined in the New York State Information Security Breach and Notification Act, as amended “ISBNA”(General Business Law § 889-aa; State Technology Law § 208) that it creates, receives, maintains or transmits on behalf of UB and to prevent unauthorized use and/or disclosure of that private information; and implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of electronic private information that it creates, receives, maintains or transmits on behalf of UB (“SUNY Data”). Contractor hereby acknowledges and agrees to fully disclose to UB pursuant to the ISBNA, and any other applicable law any breach of the security of a system where Contractor creates, receives, maintains or transmits private information on behalf of UB following discovery or notification of the breach in the system as to any resident of New York State whose private information was, or is reasonably believed to have been acquired by a person without valid authorization (“Security Incidents”). The disclosure shall be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement or any measures necessary to determine the scope of the breach and restore the reasonable integrity of the system. Contractor shall be liable for the costs associated with such breach if caused by Contractor’ negligent or willful acts or omissions, or the negligent or willful acts or omissions of Contractor’s agents, officers, employees or subcontractors. In the event of a Security Incident involving UB Data pursuant to the ISBNA, UB has an obligation to notify every individual whose private information has been or may have been compromised.

In such an instance, the Contractor agrees that UB will determine the manner in which such notification will be provided to the individuals involved pursuant to the ISBNA and agrees to indemnify UB against any cost of providing any such legally required notice.

Upon termination or expiration of the Contract, the Contractor will follow UB’s instructions relating to any UB Data remaining in Contractor’s possession. Upon authorization from UB, the Contractor will use data and document disposal practices that are reasonable and appropriate to prevent unauthorized access to or use of UB Data and will render the information so that it cannot be read or reconstructed.

M. UPTIME REQUIREMENTS

In order to enable the client to do business effectively, vendor guarantees the system’s average uptime will be ninety-nine percent (99.9%). Vendor will regularly monitor servers and collect uptime performance statistics.

After (the “Tool”) is deployed, the percentage of time, between the hours of 8:30 AM to 5:00 PM (Eastern Time), except for those holidays observed by the University at Buffalo (New Year’s Day, Martin Luther King Jr. Day, Memorial Day, Juneteenth, Independence Day, Labor Day, Thanksgiving Day, the day after Thanksgiving Day, Christmas Eve and Christmas Day), during which the Tool is not experiencing unscheduled downtime will exceed ninety-nine percent (99.9%) per month. The term 'unscheduled down time' in the preceding sentence means that the Tool is unavailable or effectively unusable by the

University, but shall not include any down time necessitated by scheduled system maintenance, the University’s inability to access the Internet, the University’s failure to timely deliver necessary data or troubleshooting access to the system, or any inability to access the Tool caused by the University’s systems, network, or configurations.

Vendor agrees to a service credit of point zero five percent (.05%) of annual license fee for every hour the system is down beyond the ninety-nine percent (99.9%) uptime, not to exceed twenty percent (20%) of total license fee.

If unscheduled downtime exceeds two percent (2%) for any three (3) months in any consecutive six (6) month period, the University shall have the right to terminate this agreement and receive a pro-rated refund of pre-paid fees that relate to the period after termination.

These terms may be negotiable prior to issuing final contract but shall include a penalty for failure to maintain appropriate uptime requirements.

N. FERPA

If Contractor will have access to the UB’s Education Records as defined under the Family Educational Rights and Privacy Act (FERPA), Contractor acknowledges that for the purposes of the Contract it will be designated as a “school official” with “legitimate educational interests” in the UB Education records, as those terms have been defined under FERPA and its implementing regulations, and the Contractor agrees to abide by the limitations and requirements imposed on school officials. Contractor will use the Education Records only for the purpose of fulfilling its duties under the Contract for UB’s and its end user’s benefit, and will not share such data with or disclose it to any third party except as provided for in the Contract, required by law, or authorized in writing by the UB.

O. N.Y. STATE FINANCE LAW §139-L

Pursuant to N.Y. State Finance Law §139-l, every bid made on or after January 1, 2019 to the State of any public department or agency thereof, where competitive bidding is required by statute, rule or regulation, for work or services performed or to be performed or goods sold or to be sold, and where otherwise required by such public department or agency, shall contain a certification that the bidder has and has implemented a written policy addressing sexual harassment prevention in the workplace and provides annual sexual harassment prevention training to all of its employees. Such policy shall, at a minimum, meet the requirements of N.Y. State Labor Law §201-g.

N.Y. State Labor Law §201-g provides requirements for such policy and training and directs the Department of Labor, in consultation with the Division of Human Rights, to create and publish a model sexual harassment prevention guidance document, sexual harassment prevent policy and sexual harassment training program that employers may utilize to meet the requirements of N.Y. State Labor Law §201-g. The model sexual harassment prevention policy, model sexual harassment training materials, and further guidance for employers, can be found online at the following URL:

https://www.ny.gov/combating-sexual-harassment-workplace/employers.

https://www.ny.gov/combating-sexual-harassment-workplace/employers

Pursuant to N.Y. State Finance Law §139-l, any bid by a corporate bidder containing the certification required above shall be deemed to have been authorized by the board of directors of such bidder, and such authorization shall be deemed to include the signing and submission of such bid and the inclusion therein of such statement as the act and deed of the bidder.

If the bidder cannot make the required certification, such bidder shall so state and shall furnish with the bid a signed statement that sets forth in detail the reasons that the bidder cannot make the certification. After review and consideration of such statement, SUNY may reject the bid or may decide that there are sufficient reasons to accept the bid without such certification.

P. ELECTRONIC PAYMENT AUTHORIZATION

Contractor shall provide complete and accurate billing invoices to UB in order to receive payment for its services. Billing invoices submitted to UB must contain all information and supporting documentation required by UB and the Office of State Comptroller (OSC). Payment for invoices submitted by Contractor shall only be rendered electronically unless payment by paper check is expressly authorized by the Vice Chancellor for Business and Finance of the State University of New York or designee, in her/his sole discretion, due to extenuating circumstances. Such electronic payment shall be made in accordance with ordinary New York state procedures and practices.

Contractor shall comply with the OSC procedures to authorize payments. Authorization forms are available at the OSC website at www.osc.state.ny.us/epay, by email at epunit@osc.state.ny.us or by telephone at 518-474-4032. Contractor acknowledges that it will not receive payment on any invoices submitted under this contract if it does not comply with the OSC’s electronic payment procedures, except where the Vice Chancellor or designee has expressly authorized payment by paper check as set forth above.

Q. PAYMENT

Payment is made Net 30 days from receipt and approval of a proper invoice in accordance with Prompt Payment Legislation Section 179g of New York State Finance Law shall govern interest for late payment.

R. TRAVEL

In the event the Bidder is required to be reimbursed for travel, reimbursement rates shall not exceed the current NYS Schedule of Allowable Reimbursable Travel Expenses, available from the New York State Comptroller at:

https://www.osc.state.ny.us/agencies/travel/travel.htm. Receipts may be required.

S. INDEPENDENT CONTRACTOR

The Successful Bidder and its agents or employees or any entity or person acting on behalf of the Bidder engaged in the performance of work shall at all times be deemed to be performing as independent contractors. The Bidder hereby covenants and agrees to act in accordance with that status. The Bidder and its agents or employees or any entity or person acting on behalf of the Bidder shall neither hold themselves out as, nor claim http://www.osc.state.ny.us/epay mailto:epunit@osc.state.ny.us https://www.osc.state.ny.us/agencies/travel/travel.htm to be, officers or employees of UB and shall make no claim for, nor be entitled to, Workers’ Compensation coverage, medical and unemployment benefits, social security, or retirement membership benefits from UB.

T. SUBCONTRACTING

In the event the Successful Bidder (Contractor) uses partners, subcontracts or subcontractors, the Contractor will remain responsible for compliance with all specifications and performance of all obligations under the contract resulting from this RFP. For the resulting agreement, the successful bidder will be the prime contractor.

UB reserves the right, upon request, within thirty (30) calendar days after Notice of Award, the Successful Bidder, shall submit a written statement to UB giving the name and address of all proposed subcontractors. The statement must contain a description of the portion of the work and materials which the proposed subcontractors are to perform and must furnish any other information to document that the proposed subcontractors have the necessary facilities, skill, integrity, past experience and financial resources to perform the work in accordance with the terms and provisions of the contract.

UB has the right to advise the Successful Bidder of an objectionable employee(s) and/or subcontractor(s).

If UB finds that the proposed subcontractors are qualified, it will so notify the Contractor within ten (10) business days following receipt of Contractor’s written statement described above. If UB determines that a subcontractor is not qualified, it will so notify the Contractor. The Contractor must, within ten (10) business days thereafter, submit a written statement as described above with respect to other proposed subcontractors, unless the Contractor decides to do such work itself and in UB’s opinion is qualified to do such work.

UB’s approval of a subcontractor shall not relieve the Contractor of any of its responsibilities, duties and liabilities under the contract. The Contractor shall be solely responsible to SUNY for the acts, omissions or defaults of such subcontractors and of such subcontractors' officers, agents and employees, each of whom shall, for this purpose, be deemed to be the agent or employee of the Contractor to the extent of its subcontract. No provisions of the awarded contract shall create or be construed as creating any contractual relation between SUNY and any subcontractor or sub subcontractor or with any person, firm or corporation employed by, contracted with or whose services are utilized by the Contractor.

The Contractor shall be fully responsible for the administration, integration, coordination, direction and supervision of all of its subcontractors and of all work. Contractor shall check requirements of the work and coordinate and adjust as required so that conflicts in time, work space, equipment and supplies do not occur in the work being performed by the Contractor with its own employees and the work being performed by its subcontractors.

No subcontractor shall be permitted to work until it has furnished satisfactory evidence to UB of the insurance required by law.

The Successful Bidder (Contractor) shall execute a written agreement with each of its subcontractors and shall require all subcontractors to execute with their sub subcontractors a written agreement which shall bind each to the terms and provisions of the prime contract awarded, insofar as such terms and provisions are applicable to the work to be performed by such subcontractors. The Contractor shall require all subcontractors and sub subcontractors to promptly, upon request, file with UB a copy of such agreements, from which the price and terms of payment may be deleted.

U. COMPLIANCE

Bidder shall comply with all laws, rules, orders, regulations, and requirements of federal, state and municipal governments applicable hereto, including the provisions of Exhibit A, State University of New York Standard Contract Clauses, attached hereto and made a part hereof, and for agreements with a value of $25,000 or more Exhibit A-1, State University of New York Affirmative Action Clauses, attached hereto and made a part hereof.

Bidder/Contractor should comply and submit all requested documentation, if relevant to this proposal. This Documentation includes, but is not limited to, NYS Vendor Responsibility Questionnaire; ST-220-CA and ST-220-TD; and Procurement Lobbying Act State Finance Law 139-j and 139k form, other exhibits. NOTE: The ST-220-TD is to be forwarded to the NYS Department of Tax and Finance, and is a one time only filing.

V. INDEMNIFICATION

1. Successful Bidder:

The Successful Bidder shall be responsible to and shall fully defend, indemnify, and hold harmless the State of New York and the State University of New York at Buffalo and their respective officers, trustees, directors, agents and employees without limitation, from any and all losses, expenses, damages and liabilities, including reasonable attorneys’ fees, arising out of the intentional or negligent acts or omissions of the Bidder, its officers, employees, agents or licensees in any performance under this Agreement including: i) personal injury, damage to real or personal tangible property; ii) negligence, either active or passive; and iii) infringement of any law or of a United States Letter Patent, with respect to Products and Services furnished under this Agreement, or of any copyright, trademark, trade secret or intellectual proprietary rights, provided that UB shall give Bidder: (a) prompt written notice of any action, claim, or threat of infringement suit, or other suit, promptness of which, shall be established by UB upon the furnishing of written notice and verified receipt, (b) the opportunity to take over, settle or defend such action, claim or suit at Bidder’s sole expense, and (c) assistance in the defense of any such action is at the expense of the Contractor. Where a dispute or claim arises relative to a real or anticipated infringement, UB may require the Bidder, at its sole expense, to submit such information and documentation, including formal patent attorney opinions, as UB shall require. New York State reserves the right to join such action, at its sole expense, when it determines there is an issue involving a significant public interest.

2. University at Buffalo:

Subject to the availability of lawful appropriations and the New York Court of Claims Act, UB will hold the Bidder harmless from and indemnify it for any final judgment of a court of competent jurisdiction only to the extent attributable to the negligence of UB or of its officers or employees when acting within the course and scope of their employment.

W. LIABILITY

The Successful Bidder understands and agrees that it is responsible for the performance of the Services in accordance with the terms and conditions of the awarded Contract.

UB may look solely to the Bidder for remedy, redress, liability or indemnification for any failure to perform, whether caused by Bidder itself or by one or more of its officers, employees, subcontractors, agents, licensees, licensors or affiliates or any person or entity acting on behalf of Bidder in providing the Services. The Bidder shall be fully liable for the actions of its officers, employees, subcontractors, agents, licensees, licensors, or affiliates or any person or entity acting on its behalf in providing the Services and shall fully indemnify and save harmless UB and the State of New York from suits, actions, damages and costs of every name and description presented, brought, or recovered against UB and the State of New York for, or on account of any liability which may be incurred by reason of the Bidder’s performance of this Agreement.

The Bidder will be responsible for the work, direction and compensation of any person or entity it engages as an officer, expert, employee, consultant, agent, independent contractor, or subcontractor. Nothing in the contract awarded or the performance thereof by the Bidder will impose any liability or duty whatsoever on UB including, but not limited to, any liability for taxes, compensation, commissions, Workers' Compensation, disability benefits, Social Security, or other employee benefits for any person or entity.

X. WARRANTY

The Successful Bidder understands and agrees that it is responsible for the performance of the Services in accordance with the terms and conditions of the awarded Contract.

Successful Bidder will warranty their solution for fitness for a particular purpose as described within the RFP response.

Y. INSURANCE COVERAGE

During the term of the awarded contract, the Successful Bidder (Contractor) must obtain and maintain insurance coverage at its own expense as provided in this paragraph, and shall deliver Certificates of Insurance in a form satisfactory to SUNY before commencing any work under this contract. Certificates shall reference the Contract Number.

Certificates of Insurance must indicate the applicable deductible/self-insured retention on each policy. Certificates shall be mailed to: University at Buffalo, Procurement Department, 224 Crofts Hall, Buffalo, NY 14260.

The policies of insurance set forth below shall be written by companies authorized by the New York Department of Financial Services to issue insurance in the state of New York (“admitted” carriers) with an A.M. Best company rating of “A-” or better. Unless otherwise agreed, policies shall be written so as to include a provision that the policy will not be canceled, materially changed, or not renewed without at least thirty (30) days prior written notice except for non-payment as required by law to University at Buffalo, Procurement Department, 224 Crofts Hall, Buffalo, NY 14260.

All insurance policies shall provide that the required coverage shall apply on a primary and not on an excess or contributing basis as to any other insurance that may be…