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Consolidated Offeror Modifications & Exceptions RFP 1301 Medical and Mental Health Services
| Section Number |
| Section Title |
| Rationale Why Language Is Unacceptable |
| Proposed Modification, Alternative, or Exception |
| Response |
| §1.9 / §2.1; Submittal Form A |
| CONTRACT TERMS AND CONDITIONS |
| State has "sole discretion" on materiality; material exceptions "will not be accepted or negotiated"; conditioning proposal on them → non-responsive. |
| Request confirmation that good-faith exceptions on Exhibit 18 are treated as non-material and available for negotiation, and that raising them will not by itself make the Proposal non-responsive. |
| Any material modifications or exceptions submitted with an Offerors proposal will be considered late and will not be accepted (see IDAPA 38.05.01.071.02.b). The State has sole discretion to determine if the modifications or exceptions are material or would otherwise threaten the integrity of the procurement process. In the event that an Offeror has submitted a material modification or exception and has conditioned their proposal on the State’s acceptance of that condition, the Offeror will be provided an opportunity to withdraw said condition. If the Offeror then rejects this opportunity, their proposal will be found non-responsive. |
| Exhibit 4 §12.1–12.2 |
| 12. Financials |
| Inflation capped 2% (yr 2) then CPI "or 3%… whichever is less"; upward "based on legislative appropriation"; deflation "effective immediately upon notification." |
| Except to the hard 2%/3% ceiling in a full-risk medical contract, to conditioning inflation on appropriation, and to unilateral immediate decreases; request true-cost/uncapped CPI and mutual agreement on any decrease. |
| IDOC rejects this proposed modification to Exhibit 4, Section 12.1-12.2. |
See Question 165 in the Consolidated Offeror Questions document.
| Exhibit 4 §12.3.3 |
| 12.3 Performance Compensation |
| IDOC "reserves the right to raise or lower… or to adjust any of the caps, weighting, or payout structure." This unilateral authority, especially beyond the initial term is objectionable. |
| Except to unilateral changes; request the amount/caps/weighting/payout be fixed for the first three year term, then to be mutually agreed upon for any extensions. |
| IDOC rejects this proposed modification to Exhibit 4, Section 12.3.3. |
| Exhibit 4 §4.4 |
| Certifications |
| May impose "$1,000 per day," a one-time "$100,000," and/or terminate for cause. There is no carve-out for the loss of accreditation that was beyond the Contractor’s control; nor is there a cure period. |
| Except where loss of accreditation is beyond Contractor's control or attributable to IDOC operations; request a reasonable cure period and fault-based standard. |
| IDOC rejects this proposed modification to Exhibit 4, Section 4.4. |
The cure period is outlined in the RFP and answered in the Q&A document.
| Exhibit 4 §11 |
| Exhibit 4 |
| Must clear a pre-existing backlog in 90 days; then "$500, per facility, per week" at 10% ADP threshold. This clause can expose Contractor to penalties based on backlogs that were not caused by the Contractor. |
| Except to LD exposure for a backlog Contractor did not create; request a mutually agreed baseline/ramp and LDs only for post-commencement backlog. |
| IDOC rejects this proposed modification to Exhibit 4, Section 11. |
| Std §1.8.1–1.8.2; Special §10 |
| Indemnification |
| Indemnify for "any and all" claims "arising out of… Contractor's acts or omissions," applying "regardless of any allegations that a claim… is attributable in whole or in part to any act or omission of the State"; relief only where State is "sole proximate cause" per "final order." Special §10 carves out only IDOC's "sole negligence or willful misconduct." |
| Except to indemnifying/defending claims caused by the State's own (non-sole) negligence; request each party bear its own proportional negligence/acts. |
| IDOC rejects this proposed modification to the Standard Terms and Conditions, Section 1.8.1 - 1.8.2 and the Special Terms and Conditions Section 10. |
| Special §20.1–20.2 (replaces Std §1.4.1) |
| Termination |
| State may terminate without cause on 60 days' notice with no reciprocal Contractor right; immediate termination on insolvency and "change of ownership of Contractor"; §20.2.4 immediate termination without cure for safety. This clause lacks mutuality and is too broad. |
| Request mutual termination rights (incl. Contractor termination for State non-payment/material breach) and removal of "change of ownership" as an immediate-termination trigger. |
| IDOC rejects this proposed modification to the Special Terms and Conditions Section 20.1 - 20.2. |
| Exhibit 4 §5 |
| Exhibit 4 |
| IDOC's facility/population changes "will not be considered material"; only "best efforts" notice. Facility/population changes can be quite material and can affect cost/staffing. |
| Except where changes materially affect cost/staffing; request advance written notice and a timely, mutually agreed per-diem adjustment before implementation. |
| IDOC rejects this proposed modification to Exhibit 4, Section 5. |
| Exhibit 5 §2.12.7.3; §16.6.3 |
| Exhibit 5 |
| IDOC "must have unrestricted access to all of the Contractor's reports, investigations, or documents"; due "within 3 business days." There are certain reports and files that are legally required to remain privileged and confidential. |
| Except to compelled production of privileged, work-product, or peer-review/QA-protected materials; request a carve-out and reasonable timeframe. |
| IDOC rejects this proposed modification to Exhibit 4, Section 16.6.3 and Exhibit 5, Section 2.12.7.3. |
| §20.4 |
| Third-party Invoices for Medical Equipment |
| IDOC "reserves the right to withhold funds from subsequent invoices" and may pay a lien-filing third party directly. This is unilateral authority without opportunity to confirm or cure. |
| Request notice and a reasonable cure period to resolve a disputed invoice before any withholding or redirection. |
| IDOC rejects this proposed modification to Exhibit 4, Section 20.4. |
| Exhibit 5 §2.13 |
| Court Proceedings |
| Must make all personnel available to testify and "will not require… a subpoena." Without the carve-outs described, this clause could be unduly burdensome on the operation. |
| Request reasonable advance notice, cost reimbursement, and that this not compel appearances in matters adverse to Contractor without process. |
| IDOC rejects this proposed modification to Exhibit 5, Section 2.13. |
| Std §1.11; Special §1; §20.2.1(e) |
| Assignment |
| No assignment, merger, consolidation, or change of control without prior written consent of the Purchasing Administrator and the Idaho Board of Examiners; transfer without approval "shall cause the annulment"; change of ownership also triggers immediate termination. |
| Request consent "not to be unreasonably withheld or delayed," with a carve-out for internal reorganizations and affiliate/upstream changes of control — significant given vendor's ownership structure. |
| IDOC rejects this proposed modification to the Assignment clause. See Idaho Code 67-9230(1). |
| Std §1.2.2 |
| Price-increase near-prohibition |
| "prices shall not increase during the initial term or during any renewal or extension term" absent written acceptance or unforeseeable cost increases. Read with the Exhibit 4 §12 CPI cap, this compounds escalation risk. |
| ; request the negotiated per-diem be fixed for the first three-year term, then to be mutually agreed upon for any extensions. |
| IDOC rejects this proposed modification to the Standard Terms and Conditions, Section 1.2.2. |
| Special §16; Std §1.3.3; Special §19.5 |
| Right to Offset |
| IDOC "may set off against monies owed… an amount equal to any amount not indemnified"; this is broad remedial withholding. |
| Request offset/withholding be limited to finally-determined (or reconciled) amounts, with notice and cure. |
| IDOC rejects this proposed modification to Special Terms and Conditions Section 16, Standard Terms and Conditions 1.3.3, and Special Terms and Conditions Section 19.5 |
| Special §2 & §4 |
| Operating Standards |
| "more stringent shall apply"; IDOC resolves conflicts and "IDOC's determination shall stand"; Contractor must implement "any and all changes… arising from any and all changes to the Operating Standards" and track legal changes "at its own expense." This clause provides unilateral authority while placing all risk on Contractor. |
| Request that material new mandates increasing cost/scope trigger a mutually agreed per-diem adjustment. (Reinforces Items 4 and 10.) |
| IDOC rejects this proposed modification to Special Terms and Conditions Section 2 and 4. Please see the Price Adjustment clause located in the Contract Terms and Conditions Section 1.3.2. |
| Special §6 |
| Force Majeure |
| Standard §1.23 force majeure is deleted and replaced; the new clause excludes Contractor financial condition, subcontractor delay, and inability to obtain insurance/bonds, and omits epidemic/pandemic from its list. |
| Request the force-majeure definition expressly include epidemics/pandemics and public-health emergencies — material for a correctional healthcare contract. |
| IDOC will accept a portion of this proposed modification to the Special Terms and Conditions, Section 6, Force Majeure. Amendment 1 contains the addition of the term “epidemics” to the definition of force majeure. |
| Insurance Requirements 1 and 1.1 |
| Insurance Requirements |
| Commercial General Liability and/or Umbrella Liability Insurance. Contractor shall maintain Commercial General Liability (CGL) and, if necessary, Commercial Umbrella insurance with a limit of not less than $3,000,00$10,0000 each occurrence and $10,000,000 aggregate. If such CGL insurance contains a general aggregate limit, it shall apply separately to this Contract. |
CGL insurance shall be written on ISO occurrence form CG 00 01 (or a substitute form providing equivalent coverage) and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract).
| The vendor respectfully takes exception to provide dedicated general liability insurance with an aggregate limit of $10,000,000 and coverage for independent contractors and contractual liability including the tort liability of another. |
| Vendors are required to provide insurance coverage for all subcontractors performing work under the contract or alternatively ensure that all subcontractors maintain appropriate insurance coverage meeting the same requirements. This requirement is standard in all State contracts. |
| Insurance Requirements 5 Medical Malpractice Professional Liability and 6 Sexual Abuse Molestation |
| Insurance Requirements |
| Medical Malpractice Liability or Professional Liability. Contractor shall maintain medical malpractice liability or professional liability insurance with minimum limit of $10,000,000 per occurrence and $10,000,000 aggregate. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the State. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the State. |
Sexual Abuse Molestation Coverage. Contractor shall obtain and keep in force sexual abuse molestation insurance with minimum limit of $10,000,000 per occurrence.
| The vendor respectfully takes exception to provide a $10,000,000 per occurrence/claim and aggregate limit for medical professional liability and sexual abuse molestation. Sexual Abuse is covered under the medical professional liability policy and the vendor shall provide a limit of $3,000,000 per claim and $6,000,000 aggregate. |
| If the Vendor is requesting an exception to the required SAM coverage limits, an exception form may be submitted for consideration to Risk Management. |
However, submission of an exception does not guarantee that the requested lower limits will be approved by the State.
IDOC Data Sensitivity Classification - L3 Restricted