BPM005633 Transperfect Exceptions Determination 12.07.23.docx
DOCX document 47 KB Posted
- Solicitation number
- BPM005633
- Issued by
- Arizona
About this file
This is an Exceptions Determination document for Solicitation BPM005633, a State of Arizona Foreign Language Interpretation and Translation Services contract awarded to TransPerfect. The document summarizes the contractor's proposed exceptions to the RFP terms and conditions submitted on or before December 7, 2023, along with the State's formal responses to each exception request. TransPerfect proposed modifications across 17 different contract sections spanning billing methodologies, subcontracting procedures, reporting requirements, pricing provisions, data protection obligations, liability limitations, insurance requirements, and security framework assessments. The exceptions addressed both the Scope of Work and Special Terms and Conditions sections, as well as Uniform Terms and Conditions outlined in various exhibits.
The State rejected substantially all of TransPerfect's proposed exceptions, with two limited acceptances. The State denied exceptions related to word count billing definitions, subcontractor approval procedures for linguists, quarterly usage reporting requirements, best pricing clauses, price increase restrictions, price reduction provisions, purchasing card fee responsibility, assignment and delegation consent requirements, off-contract services compensation, mutual confidentiality protections, refund obligations, liability limitations, and liquidated damages carve-outs. The State cited State Risk Management authorship as the basis for denying most modifications. Two exceptions were conditionally accepted: the removal of Sexual Abuse and Molestation insurance requirements contingent upon future in-person service offerings, and modifications to the AZRamp security framework assessment allowing contractors to refuse work if security compliance costs are prohibitive, with instruction to coordinate post-award implementation through Homeland Security.
View the file
Other files
Show 40 more
50 files listed here. See the rest on GovTribe.
On GovTribe
Work with this file
- Download the original file
- Contacts named in this file
- Similar government files
- Ask GovTribe AI about this file
Text version
EXCEPTIONS
Offeror: Transperfect Solicitation #: BPM005633 Foreign Language Interpretation and Translation Services
Scope of Work
| Section |
| RFP Language |
| Offeror Exceptions |
| State Comments |
| Offeror Response |
4.6.1
| 2. Shall be billed with a 300 word minimum. For billing purposes a word shall be defined as (5) characters in the requested language. |
| Alternate language: Shall be billed on final word count. For billing purchases a word shall be defined as (1) one or more characters. |
Rationale: Our contract with linguists require that we pay them per word. Our linguists will not accept projects if we redefine the meaning of a word.
State Response
12/07/23
Alternative Language is denied. Approving this would be a material change of the contract.
Special Terms and Conditions 3.7.2
| Additional names. Contractor shall not enter into a Subcontract to perform Work under the Contract, without first obtaining Procurement Officer’s written consent with any prospective Subcontractor that (a) was not listed on the Attachment Proposed Subcontractors at time of Contract execution or (b) is for any Materials or Services categories other than the ones for which they were previously consented. For either case (a) or (b), Contractor shall submit a written request sufficiently in advance of the need date for those materials or services so that performance under the Contract is not impaired. Procurement Officer may request any additional information he or she determines is necessary to assess the submittal, and may withhold consent pending it. Approval of additional subcontractors shall be added to the Contract by a bilateral Contract Amendment. |
| Alternate language: Additional names. Contractor shall not enter into a Subcontract to perform Work under the Contract, without first obtaining Procurement Officer’s written consent with any prospective Subcontractor that (a) was not listed on the Attachment Proposed Subcontractors at time of Contract execution or (b) is for any Materials or Services categories other than the ones for which they were previously consented. For either case (a) or (b), Contractor shall submit a written request sufficiently in advance of the need date for those materials or services so that performance under the Contract is not impaired. Procurement Officer may request any additional information he or she determines is necessary to assess the submittal, and may withhold consent pending it. Approval of additional subcontractors shall be added to the Contract by a bilateral Contract Amendment. For the avoidance of doubt, the Procurement Officer’s prior written consent shall not be required for Contractor’s use of subcontracted linguists in the ordinary course of its business. |
Rationale: Because it is customary within the translations industry to use individual subcontracted linguists to perform translations, it is impractical for us to seek our client’s permission every time we receive a new translation request. Moreover, we cannot provide a list of subcontracted linguists ahead of time because we cannot anticipate which linguists we use on a given project because it will vary depending on: (i) language pair; (ii) subject matter; (iii) volume; (iv) deadlines; and (v) general availability.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
3.10.4
| Contractor shall submit to State a quarterly usage report documenting all Contract sales to both Eligible Agencies and Co-Op Buyers, itemized separately. |
| Alternate language: Upon the State’s prior written request, Contractor shall submit to State a quarterly usage report documenting all Contract sales to both Eligible Agencies and Co-Op Buyers, itemized separately. |
Rationale: We’re happy to provide these reports upon request.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
4.2
| Contractor’s Best Pricing. Contractor warrants that, for the term of the Contract, the prices and discounts set out in the APP Items (F) tab OR Attachments titled Pricing, including any subsequent agreed amendment to it (the “Contract Pricing”), shall be equal to or better than the lowest prices and largest discounts, both separately and in combination, at which Contractor sells equivalent services, items of equipment, and materials. 4.2.1. That price-plus-discount equivalence (“Contractor’s Best Pricing”) is intended to be irrespective of whether or not those other sales have special purchase terms, conditions, rebates, or allowances. 4.2.2. If Contractor’s Best Pricing for equivalent services, items of equipment, and materials is better than the Contract Pricing, then Contractor agrees to adjust the Contract Pricing to match the Contractor’s Best Pricing for all sales related to the Contractor made after the date when the Contractor’s Best Pricing was first better than the Contract Pricing. 4.2.3. For clarification of intent, that date is intended to be the date when the difference first occurred, which might have been before the difference was first identified. If the difference occurred before it was identified, then Supplier agrees to charge less than the Contract Pricing until the extended difference that would have been realized (i.e. if the Contractor’s Best Pricing had been applied when it should have been) has been settled |
| Alternate language: We’d like to delete this section. |
Rationale: Per our policy, we do not agree to best pricing provisions. As a global company that has both commercial and public sector clients we have commercial clients that don't place restrictions on who we can use to perform work. Public Sector clients often restrict us to using resources based in the U.S. Given this our commercial clients who don’t place such restrictions are eligible for more competitive pricing State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
4.4
No Price Increases. All prices and rates in Pricing Attachment, or Orders if and to the extent they differ from those in the exhibit, will be valid for the entire term of the Contract, and will not be subject to revision for inflation or any changes to wages, taxes or other costs that Contractor may be obliged to incur that may be higher than those which it contemplated when proposing the relevant price or rate
Alternate language: As of the first anniversary of the date hereof, and on each anniversary thereafter, Contractor shall increase all fees covered by this Agreement and any related Statement of Work by ten percent (10%).
Rationale: We’d like the ability to increase our fees in order to adjust for inflation.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
4.5
| Price Reductions. Price reductions shall be immediately passed along to State and may be submitted in writing to State for consideration at any time during the Contract period. The contractor shall offer State a price reduction on the Contract product(s) concurrent with a published price reduction made to other customers. The State at its own discretion may accept a price reduction. The price reduction request shall be in writing and include documentation showing the actual reduction of cost. Sales promotions requests shall include differences in pricing, begin, and end date of promotion along with the products covered |
| Alternate language: We’d like to delete this section. |
Rationale: Per our policy, we do not agree to price reduction provisions.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
4.9.6
| Any and all fees related to payment using a purchasing card (also called a p-card) are the responsibility of the Contractor. |
| Alternate language: Any and all fees related to payment using a purchasing card (also called a p-card) are the responsibility of the Applicable Eligible Agency or the Co-Op Buyer (as applicable). |
Rationale: In the event an Applicable Eligible Agency or Co-Op Buyer elects to pay invoices using a purchasing card, it’s reasonable for such agency or co-op buyer to be responsible for any associated fees.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
5.1.2
| Subject to Special Terms and Conditions sections 3.10 [Subcontracts] with respect to subcontracting, Contractor may assign particular rights or delegate particular duties under the Contract, but shall obtain Procurement Officer’s written consent before doing so. |
| Alternate language: Subject to Special Terms and Conditions sections 3.10 [Subcontracts] with respect to subcontracting, Contractor may assign particular rights or delegate particular duties under the Contract, but shall obtain Procurement Officer’s written consent before doing so. For the avoidance of doubt, the Procurement Officer’s prior written consent shall not be required for Contractor’s use of subcontracted linguists in the ordinary course of its business. |
Rationale: Because it is customary within the translations industry to use individual subcontracted linguists to perform translations, it is impractical for us to seek our client’s permission every time we receive a new translation request.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
13.4
| Off-Contract Services. Contractor shall ensure that the ordering process for the Services prevents Orders for Services not included in the scope of the Contract (and for which no price or compensation has been established in the Contract) or Services explicitly excluded from the Contract. Notwithstanding that State might have its own internal administrative rules regarding off-contract or excluded ordering of Services, and endeavors to prevent such Orders from occurring, Contractor is responsible for not accepting any such Orders. State may, at its discretion, cancel any such Order without obligation. |
| Alternate language: Off-Contract Services. Contractor shall use its best efforts to ensure that the ordering process for the Services prevents Orders for Services not included in the scope of the Contract (and for which no price or compensation has been established in the Contract) or Services explicitly excluded from the Contract. Notwithstanding that State might have its own internal administrative rules regarding off-contract or excluded ordering of Services, and endeavors to prevent such Orders from occurring, the State shall be responsible for paying all fees, expenses and other monies incurred up to and including the effective termination date, including for all Services and deliverables provided. |
Rationale: We can agree to use our best efforts to ensure that the ordering process for the Services prevents Orders for Services not included in the scope of the Contract. However, in the event we are asked to provide services outside of the scope and we do so, we should still be compensated for any of the services/deliverables we provide.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
14.2-14.2.2
Data Protection and Confidentiality of Information. Contractor warrants that it will establish and maintain procedures and controls acceptable to State for ensuring that State’s proprietary and sensitive data is protected from unauthorized access and information obtained from State or others in performance of its contractual duties is not mishandled, misused, or inappropriately released or disclosed. For purposes of this paragraph, all data created by Contractor in any way related to the Contract, provided to Contractor by State, or prepared by others for State are proprietary to State, and all information by those same avenues is State’s confidential information. To comply with the foregoing warrant: 14.2.1. Contractor shall: (a) notify State immediately of any unauthorized access or inappropriate disclosures, whether stemming from an external security breach, internal breach, system failure, or procedural lapse; (b) cooperate with State to identify the source or cause and respond to each unauthorized access or inappropriate disclosure; and (c) notify State promptly of any security threat that could result in unauthorized access or inappropriate disclosures; and
14.2.2 Contractor shall not: (a) release any such data or allow it to be released or divulge any such information to anyone other than its employees or officers as needed for each person’s individual performance of his or her duties under the Contract, unless State has agreed otherwise in advance and in writing; or (b) respond to any requests it receives from a third party for such data or information, and instead route all such requests to State’s designated representative Alternate Language: Data Protection and Confidentiality of Information. Each party warrants that it will establish and maintain procedures and controls acceptable to the other party for ensuring that party’s proprietary and sensitive data is protected from unauthorized access and information obtained from State, Contractor, or others in performance of its contractual duties is not mishandled, misused, or inappropriately released or disclosed. For purposes of this paragraph, all data created by Contractor, exclusively for the State and in any way related to the Contract, provided to Contractor by State, or prepared by others for State are proprietary to State, and all information by those same avenues is State’s confidential information. For purposes of this paragraph, any material, data or information (including, without limitation, any information concerning Contractor’s pricing, technical data, trade secrets and know-how, research, product plans, products, technical requirements, software, programming techniques, algorithms, services, employee lists, contractor/vendor names and lists, inventions, processes, technology, business strategy, finances or other business information) provided by Contractor to the State about the business of the Contractor is confidential and proprietary, whether or not expressly designated as such (“Confidential Information”).
To comply with the foregoing warrant: 14.2.1. the receiving party shall: (a) notify the disclosing party immediately of any unauthorized access or inappropriate disclosures, whether stemming from an external security breach, internal breach, system failure, or procedural lapse; (b) cooperate with the disclosing party to identify the source or cause and respond to each unauthorized access or inappropriate disclosure; and (c) notify the disclosing party promptly of any security threat that could result in unauthorized access or inappropriate disclosures; and
14.2.2. Neither party shall: (a) release any such data or allow it to be released or divulge any such information to anyone other than its employees or officers as needed for each person’s individual performance of his or her duties under the Contract, unless the disclosing party has agreed otherwise in advance and in writing; or (b) respond to any requests it receives from a third party for such data or information, and instead route all such requests to the disclosing party’s designated representative. Each party shall be liable for any breach of this Agreement by any of its authorized employees or officers.
Rationale: We would like to have mutual confidentiality in place. We would also like to make clear that both parties shall be liable for the acts/omissions of its respective employees/officers.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
15.6.2
If State does cancel the Order or terminate the Contract, Contractor shall refund to State:
15.6.2.1. for any software created for State under the Contract, the amount State paid to Contractor for creating it;
15.6.2.2. for all other Materials, the net book value of the product provided according to generally accepted accounting principles; and
15.6.2.3. for Services, the amount paid by State or an amount equal to twelve (12) months of charges, whichever is less.
Alternate language: If State does cancel the Order or terminate the Contract, Contractor shall refund to State for any software created for State under the Contract, the amount State paid to Contractor for creating it.
Rationale: If none of the options in 15.6.1 can be accomplished and the State cancels the Order of terminates the Contract, it’s reasonable for TransPerfect to reimburse the State for any infringing software created for the State. However, the State should still be responsible for any deliverables and/or services that have been accepted by the State.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
15.7.2
This paragraph limits liability for first party direct, indirect, incidental, special, punitive, and consequential damages relating to the Work regardless of the legal theory under which the liability is asserted.
Alternative Language: In no event shall either party be liable to the other for any indirect, incidental, special, punitive, or consequential damages.
Rationale: We’d like to make clear that neither party shall be liable for the abovementioned damages.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
15.7.2.3 provision of the Contract calling for liquidated damages or specifying amounts or percentages as being at-risk or subject to deduction for performance deficiencies
Alternative language: We’d like to delete this section.
Rationale: This isn’t a customary carve out that we normally agree to.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
Uniform Terms and Conditions
3.3
| The State reserves the right to conduct risk assessments, vulnerability assessments, black-box penetration tests or hire a third party to conduct risk assessments, vulnerability assessments, and black-box penetration tests of the Contractor’s environment. Contractor will be alerted in advance and arrangements made for an agreeable time. Contractor shall respond to all flaws deemed serious by the State when discovered by providing an acceptable timeframe to resolve the issue and/or implement a compensating control(s). |
| Alternative language: No less than annually, Contractor shall conduct an independent third-party audit of its privacy and security systems and shall provide such audit findings to the State and shall implement any required safeguards as identified by such audits, provided, however, that in the event of a security incident, the State or another auditor mandated by the State will be allowed to audit, including inspect, upon reasonable prior notice and Contractor’s personnel are required to cooperate thereupon. |
Rationale: We already conduct our own independent third party audit and we are happy to provide the audit findings to the State.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
5.2
| The Contractor shall not enter into any Subcontract under this Contract for the performance of this Contract without the advance written approval of the Procurement Officer as described in Arizona State Procurement Office Standard Procedure 002. The Contractor shall clearly list any proposed Subcontractors and the Subcontractor’s proposed responsibilities, |
| Alternate language: The Contractor shall not enter into any Subcontract under this Contract for the performance of this Contract without the advance written approval of the Procurement Officer as described in Arizona State Procurement Office Standard Procedure 002. The Contractor shall clearly list any proposed Subcontractors and the Subcontractor’s proposed responsibilities. For the avoidance of doubt, the Procurement Officer’s prior written consent shall not be required for Contractor’s use of subcontracted linguists in the ordinary course of its business. |
Rationale: Because it is customary within the translations industry to use individual subcontracted linguists to perform translations, it is impractical for us to seek our client’s permission every time we receive a new translation request. Moreover, we cannot provide a list of subcontracted linguists ahead of time because we cannot anticipate which linguists we use on a given project because it will vary depending on: (i) language pair; (ii) subject matter; (iii) volume; (iv) deadlines; and (v) general availability.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
7.2.2
Fit for the intended purposes for which the Materials are used
Alternate language: We’d like to delete this provision.
Rationale: We won’t know the intended purpose for which the Materials will be used. As such, we cannot make this warranty.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
7.3.1.4
Be fit for the intended purpose or use described in the Contract
Alternate language: We’d like to delete this provision.
Rationale: We won’t know the intended purpose for which the Services will be used. As such, we cannot make this warranty.
State Response
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
9.5.1
| In addition to the rights reserved in the contract, the State may terminate the Contract in whole or in part due to the failure of the Contractor to comply with any term or condition of the Contract, to acquire and maintain all required insurance policies, bonds, licenses and permits, or to make satisfactory progress in performing the Contract. The Procurement Officer shall provide written notice of the termination and the reasons for it to the Contractor |
| Alternate language: In addition to the rights reserved in the contract, each party may terminate the Contract in whole or in part due to the failure of the other party to comply with any term or condition of the Contract, to acquire and maintain all required insurance policies, bonds, licenses and permits, or to make satisfactory progress in performing the Contract. The terminating party shall provide written notice of the termination and the reasons for it to the other party. |
Rationale: We’d like the ability to terminate the Contract in the event the State breaches its obligations.
12/07/23
Alternative Language is denied. This language is written by the State Risk Management and it cannot be revised.
Exhibit A, Section 1.3 (a) and (b)
| a. The policy shall include coverage for Sexual Abuse and Molestation (SAM). This coverage may be sub-limited to no less than $500,000. The limits may be included within the General Liability limit or provided by separate endorsement with its own limits. If you are unable to obtain SAM coverage under your General Liability because the insurance market will not support it, it should it be included with the Professional Liability. b. Contractor must provide the following statement on their Certificate(s) of Insurance: “Sexual Abuse and Molestation coverage is included” or “Sexual Abuse |
| Alternate language: We’d like to remove this section. |
Rationale: We do not have Sexual Abuse and Molestation (SAM) coverage. If this clause is not removed we will not be able to provide onsite interpretation services to the State. The cost of this insurance is onerous roughly $50k annually, with no guarantee of work this is cost prohibitive.
State Response
12/07/23
Alternative Language is accepted.
Please Note that if in-person services are ever offered, this insurance must be submitted.
2.2 Security Frame Work
| The State has established a process to assess risk associated with storing, processing and/or transmitting State of Arizona data with external, non-State of Arizona, entities. The Arizona Risk and Authorization Management Program (AZRamp) was developed to ensure State and contractors meet these requirements. All contractors responding to State solicitations must successfully complete the AZRamp risk assessment based upon the data classification involved as determined by the data owner and Arizona Strategic Enterprise Technology (ASET) Department. Failure to successfully complete AZRamp assessment will be deemed as breach of contract. |
| Alternate language: All contractors responding to State solicitations must successfully complete the AZRamp risk assessment based upon the data classification involved as determined by the data owner and Arizona Strategic Enterprise Technology (ASET) Department. Failure to successfully complete AZRamp assessment will be deemed as breach of contract. A contractor has the right to refuse work, if that work would require the contractor to incur costs to achieve the necessary security standard. |
Rationale : Being awarded a contract does not guarantee that a contractor will get utilized by the State. As such the contractor should not have to achieve a security standard without understanding the cost of achieving that standard and the amount of work it will be awarded if/when achieving that standard.
State Response
Alternative Language is accepted. Please work with Homeland Security on this after award.
File details come from the government source that posted it. Updated .