CSP023678_Revised_Contract.pdf

Index No.: EDU109

Eff. Date: 08/19/24

STATE OF OHIO

DEPARTMENT OF ADMINISTRATIVE SERVICES

GENERAL SERVICES DIVISION

OFFICE OF PROCUREMENT SERVICES

4200 SURFACE ROAD, COLUMBUS, OH 43228-1395

MANDATORY USE CONTRACT FOR: NATIONAL JOB SKILLS ASSESSMENT

CONTRACT NUMBER: * CSP023678 EFFECTIVE DATES: 09/30/22 TO 06/30/26

The Department of Administrative Services has accepted Proposals submitted in response to Request for Proposal (RFP) No.

SRC0000002207 that opened on 06/17/22. The evaluation of the Proposal responses has been completed. The Offeror listed herein has been determined to be the highest ranking Offeror and has been awarded a Contract for the services listed. The respective Proposal response including, Contract Terms & Conditions, any Proposal amendment, special Contract Terms & Conditions, specifications, pricing schedules and any attachments incorporated by reference and accepted by DAS become a part of this Services Contract.

This Requirements Contract is effective beginning and ending on the dates noted above unless, prior to the expiration date, the Contract is renewed, terminated, or cancelled in accordance with the Contract Terms and Conditions.

This Requirements Contract is available to the Ohio Department of Education as applicable.

The agency is eligible to make purchases of the contracted services in any amount and at any time as determined by the agency. The State makes no representation or guarantee that department will purchase the volume of services as advertised in the Request for Proposal.

This Requirements Contract and any Amendments thereto are available from the DAS Web site at the following address:

https://procure.ohio.gov/

* Amended to update contract number, per Amendment 1, effective 08/19/24.

Eff. Date: 09/30/22 Page No.: 2

MUTUALLY AGREED UPON MODIFICATIONS TO RFP TERMS AND CONDITIONS

The State and the Contractor agree to the following modifications to the RFP General Terms and Conditions.

PART TWO: WORK & CONTRACT ADMINISTRATION – RECORD KEEPING. (RFP Page 32) The Contractor will keep all financial records in accordance with generally accepted accounting procedures consistently applied. The Contractor will file documentation to support each action under this Contract in a manner allowing it to be readily located. The Contractor will keep all Project-related records and documents at its principal place of business or at its office where the work was performed.

PART TWO: WORK & CONTRACT ADMINISTRATION – REPLACEMENT PERSONNEL. (RFP Page 34) If the Offeror’s Proposal contains the names of specific people who will work on the Project, then the quality and professional credentials of those people were material factors in the State's decision to enter into this Contract. Therefore, the Contractor will use all commercially reasonable efforts to ensure the continued availability of those people. Also, the Contractor will not remove those people from the Project without the prior, written consent of the State except as provided below.

The Contractor may remove a person listed in its Proposal from the Project if doing so is necessary for legal, career progression, or disciplinary reasons. The Contractor must make a reasonable effort to give the State 30 calendar days' prior, written notice of the removal.

The Contractor must have qualified replacement people available to replace any people listed by name in its Proposal. When the removal of a listed person is permitted under this Section, or if a person becomes unavailable, the Contractor will submit the resumes for two (2) replacement people for each person removed or who otherwise becomes unavailable. The Contractor will submit the two (2) resumes, along with such other information as the State may reasonably request, within five (5) business days after the decision to remove a person is made or the unavailability of a listed person becomes known to the Contractor.

The State will select one of the two proposed replacements or will reject both of them within ten business days after the Contractor has submitted the proposed replacements to the State. The State may reject the proposed replacements for any legal reason(s). Should the State reject both replacement candidates due to their failure to meet the minimum qualifications identified in the RFP, or should the Contractor fail to provide the notice required under this Section or fail to provide two (2) qualified replacement candidates for each removed or unavailable person, the Contractor will be in default and the cure period for default specified elsewhere in this Contract will not apply. In the event of such a default, the State will have the right to terminate this Contract and to have the damages specified elsewhere in this Contract for termination due to default.

The State may determine that proposed replacement candidates meet the minimum qualifications of this Contract and still substantially reduce the value the State perceived it would receive through the work of the original individual(s) the Contractor proposed and on whose credentials the State decided to enter into this Contract. Therefore, the State will have the right to reject any candidate that the State determines will provide it with diminished value.

The State has an interest in providing a healthy and safe environment for its employees and guests at its facilities. The State also has an interest in ensuring, and right to ensure, that its operations are carried out in an efficient, professional, legal, and secure manner. The State, therefore, will have the right to require the Contractor to remove any individual working on the Project if the State determines that any such individual has or may interfere with the State's interests identified above. In such a case, the request for removal will be treated as a case in which an individual providing services under this Contract has become unavailable, and the Contractor will follow the procedures identified above for replacing unavailable people. This provision applies to people engaged by the Contractor's subcontractors if they are listed as key people in the Proposal.

PART THREE: OWNERSHIP & HANDLING OF INTELLECTUAL PROPERTY & CONFIDENTIAL INFORMATION – CONFIDENTIALITY. (RFP Page 39) Either party (“Disclosing Party”) may provide the other party (“Receiving Party”) with written material or oral or other information that the Disclosing Party treats as confidential ("Confidential Information"). Title to the Confidential Information and all related materials and documentation the Disclosing Party delivers to the Receiving Party will remain with the Disclosing Party. The Receiving Party must treat such Confidential Information as secret if it is so marked, otherwise identified as such, or when, by its very nature, it deals with matters that, if generally known, would be damaging to the best interests of the public, other contractors or potential contractors with the Disclosing Party, or individuals or organizations about whom the Disclosing Party keeps information. By way of example, information should be treated as confidential if it includes any proprietary documentation, materials, flow charts, codes, software, computer instructions, techniques, models, information, diagrams, know-how, trade secrets, data, business records, or marketing information. By way of further example, the Receiving Party also must treat as confidential materials such as police and investigative records, files containing personal information about individuals or employees of the Disclosing Party, such as personnel records, tax records, and so on, court and administrative records related to pending actions, any material to which an attorney-client, physician-patient, or similar privilege may apply, and any documents or records expressly excluded by Ohio law from public records disclosure requirements.

Eff. Date: 09/30/22 Page No.: 3

MUTUALLY AGREED UPON MODIFICATIONS TO RFP TERMS AND CONDITIONS (continued)

PART THREE: OWNERSHIP & HANDLING OF INTELLECTUAL PROPERTY & CONFIDENTIAL INFORMATION – CONFIDENTIALITY. (RFP Page 39) (continued)

The Receiving Party agrees not to disclose any Confidential Information to third parties and to use it solely to do the Project.

The Receiving Party will restrict circulation of Confidential Information within its organization and then only to people in the Receiving Party’s organization that have a need to know the Confidential Information to do the Project. The Receiving Party will be liable for the disclosure of such information whether the disclosure is intentional, negligent, or accidental, unless otherwise provided below.

The Receiving Party will not be liable for any unintentional disclosure of Confidential Information that results despite the Receiving Party’s exercise of at least the same degree of care as it normally takes to safeguard its own secrets, except when the Receiving Party’s procedures are not reasonable given the nature of the Confidential Information or when the disclosure nevertheless results in liability to the Disclosing Party.

The Receiving Party will not incorporate any portion of any Confidential Information into any work or product, other than a Deliverable, and will have no proprietary interest in any of the Confidential Information. Furthermore, the Receiving Party will cause all of its employees who have access to any Confidential Information to execute a confidentiality agreement incorporating the obligations in this section (a Confidentiality Agreement executed as part of the Receiving Party’s employment which requires such employee to maintain the confidentiality of Receiving Party’s clients satisfies this obligation).

The Contractor's obligation to maintain the confidentiality of the Confidential Information will not apply where such: (1) Was already in the Contractor's possession before disclosure by the State, and such was received by the Contractor without obligation of confidence; (2) Is independently developed by the Contractor; (3) Is or becomes publicly available without breach of this Contract; (4) Is rightfully received by the Contractor from a third party without an obligation of confidence; (5) Is disclosed by the Contractor with the written consent of the State; or (6) Is released in accordance with a valid order of a court or governmental agency, provided that the Contractor (a) Notifies the State of such order immediately upon receipt of the order and (b) Makes a reasonable effort to obtain a protective order from the issuing court or agency limiting disclosure and use of the Confidential Information solely for the purposes intended to be served by the original order of production. The Contractor will return all originals of any Confidential Information and destroy any copies it has made on termination or expiration of this Contract.

The Contractor may disclose Confidential Information to its subcontractors on a need-to-know basis, but they will be obligated to the requirements of this section.

PART THREE: OWNERSHIP & HANDLING OF INTELLECTUAL PROPERTY & CONFIDENTIAL INFORMATION – OWNERSHIP OF DELIVERABLES. (RFP Page 41) All deliverables produced by the Contractor and covered by this Contract, including any software modifications, and documentation, shall be owned by the State, with all rights, title, and interest in all intellectual property that come into existence through the Contractor’s custom work being assigned to the State.

Additionally, the Contractor waives any author rights and similar retained interests in custom-developed material. The Contractor will provide the State with all assistance reasonably needed to vest such rights of ownership in the State.

PART THREE: OWNERSHIP & HANDLING OF INTELLECTUAL PROPERTY & CONFIDENTIAL INFORMATION – LICENSE IN COMMERCIAL MATERIAL. (RFP Page 41) This section is removed in its entirety.

PART FOUR: REPRESENTATIONS, WARRANTIES AND LIABILITIES – INDEMNITY. (RFP Page 43) The Contractor will indemnify the State for any and all “third party” claims, damages, law suits, costs, judgments, expenses, and any other liabilities resulting from bodily injury to any person (including injury resulting in death) or damage to property that may arise out of or are related to Contractor's performance under this Contract, providing such bodily injury or property damage is due to the negligence of the Contractor, its employees, agents, or subcontractors.

The Contractor will also indemnify the State against any claim of infringement of a copyright, patent, trade secret, or similar intellectual property rights based on the State's proper use of any Deliverable under this Contract. This obligation of indemnification will not apply where the State has modified or misused the Deliverable and the claim of infringement, is based on the modification or misuse. The State agrees to give the Contractor notice of any such claim as soon as reasonably practicable and to give the Contractor the authority to settle or otherwise defend any such claim upon consultation with and approval by the Office of the State Attorney General. If a successful claim of infringement is made, or if the Contractor reasonably believes that an infringement claim that is pending may actually succeed, the Contractor will take one (1) of the following four (4) actions:

1. Modify the Deliverable so that is no longer infringing.

2. Replace the Deliverable with an equivalent or better item.

3. Acquire the right for the State to use the infringing Deliverable as it was intended for the State to use under this Contract.

4. Remove the Deliverable and refund the fee the State paid for the Deliverable and the fee for any other Deliverable that required the availability of the infringing Deliverable for it to be useful to the State.

Page No.: 4

MUTUALLY AGREED UPON CLARIFICATIONS

The State of Ohio and *the Contractor have agreed to the following:

A. In the RFP, the Agency requested sample layouts for reports that will be provided to the Agency and districts/schools, which applies to both the reports that the Contractor will provide to the Agency and districts/schools directly and to reports that would be accessed online by the Agency and districts/schools. *The Contractor did not include these sample reports with their Proposal but provided them during the clarification process.

ACT, Inc. provided clarification on the reports available in the WorkKeys Online Reports Portal, an application program that interfaces with the Validus system. The Online Reports Portal is where various types of examinee score reports may be generated and exported to be saved and printed locally. It is accessible only to users with the role of Portal Manager on their Validus account. Reports are available in the Reports Portal two business days after scoring takes place.

“Group” reports only apply to ACT WorkKeys tests taken online.

Information on what the reports show and how the report can be used, as well as a PDF format of each report and a PDF of the data file layout for the State data file provided to ODE on a quarterly basis, are provided in the document entitled “Request for Clarification Rd 2 OH National Job Skills Assmt ACT 090122.pdf” and is incorporated here by reference.

B. The ACT WorkKeys Testing Program District Terms and Conditions is the form of agreement which *the Contractor uses to contract with the Schools and Districts that desire to use the WorkKeys Assessments. *The Contractor understands that the Agency has made one edit within the document, which *the Contractor can accept. *The Contractor also made an edit to that agreement template to provide notice to the Schools and Districts that they are obligated to provide the student SSID when registering each student, in order to receive reimbursement from ODE. *The Contractor also agrees that the ACT WorkKeys Testing Program District Terms and Conditions is still considered a draft document, subject to *the Contractor and the Agency discussing the content of the form with the Agency reserving the right to propose alternate terms within the document. *The Contractor will work with the Agency on the terms prior to disseminating it to districts. Generally, a school or district is only required to agree to the ACT WorkKeys Testing Program District Terms and Conditions at the start of the contract between *the Contractor and the Agency. To the extent *the Contractor requires a school or district to agree to any updated terms, *the Contractor will review the updated terms with the Agency prior to dissemination to schools or districts.

C. To ensure clarity, the State Data shall be defined to include the data which the State provides to *the Contractor as part of the services. The assessment scores, results, and certificates generated as part of the proprietary assessment services provided by *the Contractor are not “State Data.” Rather, *the Contractor retains ownership of the score data to ensure it can protect the validity of the assessments. Furthermore, *the Contractor may use and disclose the data collected from the administration of the Assessments, as set forth in *the Contractor’s Privacy Policy available at https://www.act.org/privacy, as amended from time to time.

D. *The Contractor agrees to notify the State within twenty-four (24) hours of a potential breach of State Data, followed by an action plan no more than seventy-two (72) hours after confirmation of a data privacy breach.

E. *The Contractor agrees to update the ACT WorkKeys Testing Program District Terms and Conditions to include clear instructions indicating that districts must include a student’s SSID during registration in order for the district to be reimbursed by the Agency. Because this is a required field, the test coordinator will not be able to complete the registration process without entering this information for each student. Upon award of the Contract, the Agency and *the Contractor will collaborate to finalize the additional language proposed by *the Contractor prior to disseminating the District Terms and Conditions to districts.

F. *The Contractor will do the following to work with districts and schools and their staff to ensure that all assessment registration submissions include the student’s SSID: The school or district test coordinator will create examinee accounts individually in the system or through a batch load using a web-interface. The test coordinator will enter the student’s SSID in the Examinee ID field in the user creation screen or batch load file. The system requires the Examinee ID to be entered before the user can continue. *The Contractor will not auto fill the Examinee ID. *The Contractor will not generate an alternate placeholder ID. This is a required field and cannot be left blank. *The Contractor will work with the Agency upon award of the Contract to modify the templates that are currently used for this program, and to document the process that schools and districts can follow if they mistakenly enter an incorrect Examinee ID.

G. *The Contractor will develop a process to communicate with the Agency when new schools are signed up to use the assessment testing service under this Contract. This will include the onset of the school year and the event of enrollment during the school year. For any new site which completes a district agreement with *the Contractor that did not order the previous year, *the Contractor will notify the Agency by email. *The Contractor will work with the Agency to identify what information *the Contractor shall provide to the Agency as part of this email communication.

H. For this Contract, a subcontractor is defined as a third party engaged by the Contractor specifically to perform a portion of the services for the State set forth in this Contract and is not applicable to the Contractor’s suppliers and vendors that provide service across all of the Contractor’s customers.

* Amended to update the contractor’s name, per Amendment 1, effective 08/19/24.

https://www.act.org/privacy

Page No.: 5

COST SUMMARY

National Job Skills Assessment

* CSP010679

UNSPSC CATEGORY CODE: 86132200

DESCRIPTION UNIT OF

MEASURE

COST

Contract Effective Date – June 30, 2023

July 1, 2023 – June 30, 2024

July 1, 2024 – June 30, 2025

July 1, 2025 – June 30, 2026

Individual WorkKeys Test Cost (to be paid by districts) Each $11.25 $11.75 $12.25 $12.75

* Amended to update contract number, per Amendment 1, effective 08/19/24

Page No.: 6

CONTRACTOR INDEX

CONTRACTOR AND TERMS: CSP CONTRACT NO.: * CSP023678

** 0000324973 ** ACT Education Corp. TERMS: Net 30 500 ACT Drive PO Box 168 Iowa City, IA 52243

CONTRACTOR'S CONTACT:

** Blake Curwen ** Telephone: (319) 471-0593 ** Vice President, Client Relations ** E-Mail: Blake.Curwen@act.org

* Amended to update contract number, per Amendment 1, effective 08/19/24.

** Amended to update contractor information, per Amendment 1, effective 08/19/24.

mailto:Blake.Curwen@act.org

* Page No.: 7

SUMMARY OF AMENDMENTS

Amendment Number

Effective Date Description

1 08/19/24 This amendment is issued to notify of a contract assignment from ACT, Inc. to ACT Education Corp., to update the contract number and contractor information, and to add a Summary of Amendments page, effective 08/19/24.

* Amended to add a Summary of Amendments page, per Amendment 1, effective 08/19/24.