DCY-C-2627-0053Q_RFQ_for_Procurement_and_Distribution_of_Ultrasound_Machines.docx

STATE OF OHIO

DEPARTMENT OF CHILDREN AND YOUTH

REQUEST FOR QUALIFICATIONS

RFQ NUMBER: DCY-C-2627-0053Q

The Department of Children and Youth (DCY), is issuing the following Request for Qualifications (RFQ):

Supply and Distribution of 3D Diagnostic Ultrasound Machines

RFQ

Proposals received after the due date and time will not be evaluated.

Section 1 - Overview

A. Definitions in this RFQ

The following definitions apply to the RFQ and Contract.

Agency or DCY: Ohio Department of Children and Youth.

Contract: The contract resulting from this RFQ.

Contractor: The selected Offeror.

DAS: Ohio Department of Administrative Services.

Deliverable: Any Contractor-provided products, supplies, services, or work described in the specifications of the Contract.

Offeror: An offeror submitting a Proposal in response to this RFQ.

Proposal: Documents submitted by Offerors in response to this RFQ.

State: State of Ohio.

Work: The scope of work described in this RFQ.

AIUM: American Institute of Ultrasound in Medicine

FDA: U.S. Food and Drug Administration

IEC: International Electrotechnical Commission

MI: Mechanical Index

ISUOG: International Society of Ultrasound in Obstetrics and Gynecology, ALARA Principle: As Low as Reasonably Achievable

TI: Thermal Index

B. Term of Contract

Once awarded, the term of the Contract will be as set forth in Part 6, Draft Contract. The State may renew this Contract at its discretion for a period of one month. Any further renewals will be by mutual agreement between the Contractor and the State as set forth in Part 6. Each renewal is subject to and contingent upon the discretionary decision of the Ohio General Assembly to appropriate funds for this Contract in each new biennium. The State may renew all or part of this Contract subject to the satisfactory performance of the Contractor and the needs of the Agency.

C. Purpose and Background

The purpose of this RFQ is to solicit proposals to identify and contract with an offeror that can supply and distribute and provide training and support for mobile and stationary 3D diagnostic ultrasound machines for DCY-identified sites.

Ohio House Bill 96, Section 423.106, requires the DCY Director to purchase 3D diagnostic ultrasound machines and distribute them through a grant program to eligible Ohio entities that (1) do not charge for ultrasound services provided to pregnant women and (2) do not promote abortion, perform abortion-related medical procedures, or make referrals for abortions.

Section 2 – Evaluation Process and Evaluation Metrics

A. Evaluation of Proposals Generally

To maintain fairness in the evaluation process, the State will obtain all information sought in a manner such that no Offeror is provided an unfair competitive advantage.

B. Mandatory Requirements Evaluation

The Offeror must demonstrate that it meets all of the Mandatory Requirements listed in the Mandatory Requirements table. A Proposal meeting all of the Mandatory Requirements may be included in the next part of the evaluation phase as described herein.

The State will evaluate the Mandatory Requirements to determine whether the Proposal meets all of the Mandatory Requirements. If the information Proposal does not clearly meet every Mandatory Requirement, the Proposal may be disqualified without further evaluation.

1. Mandatory Requirements

The table below lists this RFQ’s Mandatory Requirements. A Proposal meeting the Mandatory Requirements may be included in the next phase of the evaluation process.

MANDATORY REQUIREMENTS

Reject

The Offeror must have at least three years of experience in the supply, distribution, training support of 3D ultrasound machines.

C. Work Plan Evaluation

1. Work Plan Scoring

The Scoring Scale table below will be used to rate each Proposal on the technical metrics listed in the Work Plan Evaluation table, also below. Numerical values are defined as follows:

SCORING SCALE

Numerical Rating

· Response contains many significant strengths and few minor weaknesses, if any.

· There is very little risk that the Offeror would fail to satisfy the requirement(s).

· Response contains many strengths that outweigh the weaknesses. Weaknesses, if any, are very minor and can be readily corrected.

· There is little risk that the Offeror would fail to satisfy the requirement(s).

· Response contains strengths that are balanced by the weaknesses. Weaknesses are minor and can be corrected.

· There is some probability of risk that the Offeror may fail to satisfy some of the requirement(s).

· Response contains weaknesses that are not offset by strengths. There are significant weaknesses and very few strengths.

· There are questions about the likelihood of success and there is a risk that the Offeror may fail to satisfy the requirement(s).

· Response contains many significant weaknesses and very minor strengths, if any.

· There is not a reasonable likelihood of success and a high risk that the Offeror would fail to satisfy the requirement(s).

· Response is devoid of strengths.

· Response has an unacceptable level of risk that the Offeror will fail to satisfy the requirement(s).

WORK PLAN EVALUATION

Metric

(0-5) Raw Score

Supply and Distribution

1. The Offeror must submit a detailed plan outlining its approach to supplying 3D diagnostic ultrasound machines in full compliance with applicable clinical and safety standards defined by the FDA and IEC. The Offeror’s plan must:

a. Describe the process for supplying both stationary and mobile 3D ultrasound machines.

b. Describe process for ensuring supplied machines are compliant with safety standards.

2. The Offeror must describe the delivery and installation plan of machines to all DCY-identified sites according to Part 1 of the Contract.

a. The Offeror must include in its plan a description of:

i. Logistics Plan.

ii. Timeline and Scheduling.

iii. Risk Management.

iv. Delivery Standards.

v. Documentation.

b. Offeror must describe:

i. Steps for physical installation, software configuration, and calibration of stationary, and mobile machines.

ii. The process for confirming that equipment is installed correctly, tested, and fully documented prior to use on patients.

Training

The Offeror must describe a training plan that meets Part 1 of the Contract. The Offeror must include in its plan a description of:

1. Scope of Training.

2. Safety and Compliance Standards.

3. Description of Training Staff.

4. Evaluation and Documentation.

Maintenance and Support

1. The Offeror must demonstrate the ability to provide and/or coordinate equipment maintenance and repair services according to Part 1 if the Contract as part of all installations.

2. The Offeror must ensure that suppliers or third parties used for maintenance meet manufacturer specifications and FDA regulations and international standards (e.g., IEC 60601-2-37, AIUM guidelines).

3. The Offeror must describe the process for scheduling, tracking, and confirming maintenance activities.

The Offeror with the highest raw score for the Work Plan will receive 90 points. The remaining Offerors that are not otherwise disqualified will receive a percentage of the maximum points available based upon the following formula:

Work Plan Score = (Offeror’s Work Plan points / highest Work Plan points) x 90

D. Cost Evaluation

Before review of the Work Plans or at any time during the evaluation process, the State may review the cost proposals to determine whether any Proposals should be rejected because of excessive cost. After evaluating the Work Plans, or after any interviews, presentations, and demonstrations have occurred, the State may consider the costs of one or more of the higher-ranking Proposals.

1. Cost Proposal Scoring

The Offeror with the lowest proposed cost will receive 90points. The remaining Offerors will receive a percentage of the maximum cost points available based upon the following formula:

Cost Score = (lowest proposed cost / Offeror’s proposed cost) x 90

E. Determination of Responsibility

The State will review the highest-ranking Offeror and proposed subcontractors to ensure that the Offeror is responsible prior to Contract award. The State may reject any Proposal if an Offeror or a subcontractor is determined not to be responsible. The State’s determination of an Offeror’s responsibility may include the following factors: (i) experience, (ii) financial condition, (iii) facilities, (iv) past conduct and performance on previous contracts, (v) ability to execute the Contract properly, (vi) management skills, and (vii) information security assurances. The State will make such determination of responsibility based on the Proposal, reference evaluations, and any other information the State requests or determines is relevant.

F. Waiver of Defects

The State may waive any defects in any Proposal or errors in the submission process by an Offeror, but the State will only do so when it is in the State's interest and will not cause any material unfairness to another Offeror.

G. Clarifications, Corrections, and Changes

During the evaluation process, the State maintains discretion to request clarifications from any Offeror or give any Offeror the opportunity to correct defects in its Proposal if doing so would not result in an unfair advantage for any Offeror. The State may reject any clarification that is non-responsive or broader in scope than what the State requested. If the State rejects the clarification, or if the Offeror fails to respond to the request for clarification, the State may request additional clarification, consider the Proposal without the clarification, or disqualify the Proposal.

After the Proposal due date, the State may change the requirements or terms and conditions of this RFQ and request updated Proposals from those Offerors whose Proposals are under active consideration. In such cases, the State will permit Offerors to withdraw their Proposals if they are unable to meet the changed requirements or terms and conditions.

H. Final Scoring

The Offeror with the highest total score will be recommended for the next phase of the evaluation process.

Technical Score + Cost Score = Total Score

1. Preferences

The State will apply all preferences pursuant to Ohio Administrative Code 123:5-1-06.

Following the initial evaluation and scoring, all Proposals will be considered for preferences. Preferences will be calculated at a rate of five percent (5%) for the first preference and two percent (2%) each for the second and third preferences. The preferences shall be combined and applied as a total percentage of the original Proposal to determine the score for evaluation purposes.

Preferences will only be applied if there is at least one Offeror that does not qualify for that particular preference. For purposes of qualifying for a preference, an Offeror failing to complete the certification for each preference will be deemed as not qualifying for that preference.

(a) For the Buy American preference, if any Offeror offers a product that is not a domestic source end product, the State will add the applicable percentage of the total available points to the total score of each Offeror offering a domestic source end product.

(b) For the Buy Ohio preference, if any Offeror is a Buy Ohio Offeror claiming the preference, the State will add the applicable percentage of the total available points to each Buy Ohio Offeror’s total score.

(c) If claiming the preferences in (a) and (b) based on the product(s) offered, an Offeror is only eligible to receive the preference if the cost of the product(s) offered exceeds 50% of the total offered cost for products and services. A Buy Ohio Offeror is also eligible to receive the Buy Ohio preference based on its significant economic presence in Ohio or a border state.

(d) For the Veteran-Friendly Business preference, the State will add the applicable percentage of the total available points to any certified veteran-friendly business Offeror’s total score.

Section 3 – Instructions to Offeror

A. Introduction to General Instructions

The following sections provide details on how to get more information about this RFQ and how to respond to this RFQ. All responses must be complete and in the prescribed format.

B. Inquiries

Offerors may not contact the State directly at any time during the solicitation process, however Offerors may make inquiries regarding this RFQ any time during the inquiry period listed in OhioBuys.

To make an inquiry, Offerors must login to OhioBuys, navigate to the solicitation, open the Inquiry tab and submit their inquiry. Offerors will not receive a personalized e-mail response to their question, nor will they receive notification when the question has been answered. Offerors may view inquiries and responses on the OhioBuys Public Solicitations page by opening the Solicitation Overview and navigating to the inquiries section of that page.

The State will attempt to respond to all inquiries within three business days of receipt, excluding State holidays. The State will not respond to any inquiries received after 8:00 a.m. on the inquiry end date listed in OhioBuys. The State will use its discretion in deciding whether to provide responses as part of this RFQ process. Responses to inquiries are not considered changes to the RFQ.

C. Restrictions on Communication

Other than the communication options described in this RFQ, Offerors must not make unsolicited contact with any elected official or office of the State, any staff member of DAS or the Agency, or any agent or representative of DAS or the Agency, regarding this RFQ. Offerors must not represent themselves to anyone as having the endorsement of the Agency or the State, nor as the Agency’s next supplier of the Work. For contractors currently doing business with the Agency, any communication regarding this RFQ is prohibited except as provided for in this RFQ. Any such unauthorized contact may result in an Offeror being disqualified from further consideration under this RFQ. The State will not discuss the particulars of this RFQ process with external parties.

D. Proposal Format

Technical Proposal: The Offeror’s technical proposal must be submitted in Microsoft Word®, if possible (certain forms may be submitted as PDFs), through OhioBuys and as instructed in the technical questionnaire in OhioBuys. The technical proposal shall consist of all questionnaire responses and documents submitted in response to this RFP excluding the cost proposal. All technical proposal documents must be submitted in the order listed below.

Cost Proposal: The Offeror’s cost proposal must be submitted through OhioBuys as instructed in the cost questionnaire in OhioBuys. The cost proposal shall consist of a separate cost section as described below and in the required format.

E. Proposal Submittal

Each Offeror must submit a Work Plan and a cost proposal as separate sections of its Proposal before the Proposal due date and time and pursuant to the instructions in this section. Proposals, including all components of the Proposals, must not be password protected or the State may reject any such Proposals.

Offerors must submit their Proposals electronically in OhioBuys before the noted time on the Proposal due date. Paper submissions will be destroyed and will not be considered. OhioBuys will not allow submission or modification to a submission after the deadline. An Offeror submitting an electronic Proposal must allow for adequate time for uploading a Proposal prior to the due date and time. Technical difficulties experienced by the Offeror will not be an exception.

Each Offeror must carefully review the requirements of this RFQ and the contents of its Proposal. Once opened, Proposals cannot be altered or withdrawn, except as allowed by this RFQ.

The State may reject any Proposal if the Offeror takes exception to the terms and conditions of this RFQ, includes unacceptable assumptions or conditions in its Proposal, fails to comply with the procedure for participating in the RFQ process, or fails to meet any requirement of this RFQ. The State also may reject any Proposal it believes is not in its interest to accept, cancel this RFQ, or decide not to award a Contract to any or all of the Offerors responding to this RFQ.

All Proposals and other material that Offerors submit will become the property of the State and may be returned only at the State's option. All Proposals will be open to the public after the State has awarded the Contract. The State will retain all Proposals, or a copy of them, as part of the Contract file for at least six years. After the six-year retention period, the State may dispose of the Proposals and any copies of them.

The State is not responsible for any costs an Offeror incurs in responding to this RFQ or from participating in the evaluation process or negotiations process (if any), regardless of whether the State awards the Contract through this process, decides not to go forward with the Contract award, cancels this RFQ for any reason, or contracts for the Work through some other process or through another RFQ.

D. Rejection of Proposals Generally

The State may reject any Proposal for the reasons listed in this RFQ, that fails to comply with the procedure for participating in the RFQ process, that fails to meet the RFQ requirements, or that is not in the State’s interest to consider or to accept. In addition, the State may cancel this RFQ, reject all Proposals, and seek to do the Work through a new RFQ or by other means.

E. Proprietary Information

As set forth in Ohio Administrative Code 123:5-1-07 and 123:5-1-08, if an Offeror includes in its Proposal information it considers exempt from disclosure in a public records request, it must submit a redacted version of any document containing such information, as further described in this paragraph. Offerors must only redact (black out) the specific language that is exempt from disclosure pursuant to the Ohio Public Records Act. Examples of actions that are not acceptable for the protection of information in a Proposal include: (a) redaction of sections in their entirety simply because they may contain some information exempt from disclosure pursuant to the Ohio Public Records Act; (b) inclusion of a blanket confidentiality or copyright notice anywhere in the Proposal; and (c) redaction of the cost proposal in its entirety. Prices, makes, models, catalog numbers of the items offered, deliveries, and terms of payment will be available for public inspection regardless of any designation to the contrary.

In addition to the redacted document(s), Offerors must submit a list of each redaction, using the Offeror Redaction Justification Form (Form 5d) in Part 5, with a detailed legal explanation for each redaction to demonstrate that the redacted information is protected under the Ohio Public Records Act. A blanket statement that all redactions are exempt from disclosure pursuant to the Ohio Public Records Act and/or the Uniform Trade Secrets Act is not a sufficient explanation. The redacted version(s) must be submitted as an electronic copy in a searchable PDF format. The redacted version(s) and accompanying explanation, as submitted, will be available for inspection and released in response to public records requests.

By submitting a redacted Proposal, the Offeror agrees to indemnify the State, DAS, and the Agency for any court costs, statutory damages, attorney fees, or other award issued against the State, DAS, or the Agency for any violation of the Ohio Public Records Act resulting from the State, DAS, or the Agency providing the Offeror’s redacted version of its Proposal in response to a public records request.

By not submitting a redacted version of the Proposal with accompanying explanation, an Offeror consents to the release of the original Proposal submission in response to a public records request. If redacted version(s) with the accompanying explanation are not submitted, or if an improperly redacted version or insufficient explanation is submitted, the State will advise the Offeror in writing what portions of the Proposal are subject to disclosure in response to public records requests.

F. Proposal Components

1. Work Plan. The specifics of the Work Plan must include sufficient detail for the State to understand the Offeror’s knowledge and approach to the following: managing the Work; documenting planning decisions; facilitating communication among stakeholders; defining key management review as to content, scope, and schedule; and providing a baseline for progress measurement and Work control.

At a minimum, the Work Plan must include the following:

a. A description of the project management approach; and

b. A high-level overview of the following subsidiary project management plans:

If applicable to the Work, the Offeror must identify all proposed equipment needed for the Work during the installation, customization (as applicable), implementation, and ongoing operations phases. The Proposal must include the proposed manufacturer's name and model for all equipment. Additionally, the Offeror must identify any equipment that the State will require for the implementation and ongoing operation of the Work that is not otherwise specified in this RFQ.

Additionally, in the Work Plan, the Offeror should address potential and known risks, and proposed risk mitigation strategies.

2. Cost Proposal components

a. Cost Proposal Form. The Offeror’s total cost for the Work must include all one-time and ongoing costs and be represented as a firm fixed price.

Contractor will be paid according to the fee structure within the Cost Proposal Form.

The Offeror must ensure its cost proposal is submitted separately from the Work Plan as indicated in the Proposal Submittal paragraph above. Cost information must not be included in the Work Plan.

The Offeror may not modify or reformat the Cost Proposal Form. The Offeror must complete the required portions of the Cost Proposal Form. Additionally, all portions of the Cost Proposal Form must be completed in the exact format provided. The Offeror must not include exceptions, additional terms and conditions, or assumptions in the submitted Cost Proposal Form. The State may reject any Proposal with a modified or reformatted Cost Proposal Form; a Cost Proposal Form that is not separately submitted; or a Cost Proposal Form that includes exceptions, additional terms and conditions, or assumptions.

The State will not be liable for any costs the Offeror does not identify in its cost proposal. There will be no additional reimbursement for travel or other related expenses.

b. Preference Certification Form (Form 5c). Offerors claiming preference for Domestic Source End Products, the Ohio (Buy Ohio) preference, and/or Veteran Friendly Business Enterprise (VBE) must complete the Preference Certification Form.

3. Offeror Redaction Justification Form (Form 5d). The Offeror must complete the Offeror Redaction Justification Form pursuant to the instructions above, Proprietary Information, and Form 5d if the Offeror includes in its Proposal information it considers exempt from disclosure in a public records request.

4. Acceptance of Terms and Conditions. The Offeror must include the entire content of Parts 2 and 3 as a single section in its Proposal. The Offeror must include a statement at the beginning of this section indicating that the Offeror has read, understands, and agrees to all of the terms and conditions contained in Parts 2 and 3.

5. Pre-Existing Materials. If applicable, the Offeror must list any Pre-Existing Materials (defined in Part 2 that will be included in a Deliverable in Form 5e in Part 5. The State may reject any Proposal that includes Pre-Existing Materials for a custom solution if the State believes that such is not appropriate or desirable for the Work.

6. Commercial Material. If applicable, the Offeror must list any Commercial Material (defined in Part 2, including Commercial Software (defined in Part 2), that the Offeror will deliver in which the State will have less than full ownership in Form 5e in Part 5. Generally, these will be from third parties. The Offeror need not list patented parts of equipment.

The Offeror must attach the applicable license agreement(s) for all Commercial Material for the State to review. However, the State may require the Offeror or third party to enter into the State’s Master Contract for Software Licensing.

CONTRACT

Part 1 – Scope of Work

1. Contractors Responsibilities

a. Contractor must supply 3D diagnostic ultrasound machines in compliance with clinical and safety standards defined by the FDA and IEC. This includes both mobile and stationary machines. Contractor must deliver and install machines to all DCY-identified sites.

i. Stationary Ultrasound Machines: Full-size machines typically located in hospitals or specialty imaging centers. These units are not designed for frequent relocation.

ii. Mobile (Cart-Based) Ultrasound Machines: Larger machines mounted on wheels. These units are designed to be moved easily within a clinical or hospital setting for point-of-care use.

b. Contractor must provide documentation of equipment ownership, delivery, and activation.

i. Contractor must deliver machines within 12 weeks from the order date in coordination with staff of DCY-identified sites.

ii. Contractor must address any potential challenges (e.g., shipping delays, equipment damage, site accessibility) and communicate with staff of DCY-identified sites.

iii. Contractor must follow protocols for safe transport and receipt of machines (e.g., adherence to manufacturer shipping and handling requirements, chain-of-custody, and/or inspection upon arrival).

iv. Contractor must follow the FDA and IEC standards during the delivery, installation, software configuration, calibration, and setup process.

v. Contractor must provide written confirmation to staff of DCY-identified sites that the equipment is installed correctly, tested, and fully documented, prior to use on patients.

c. Contractor must provide maintenance, repair, training, and support at no additional charge to the State or DCY-designated sites.

2. Training and Support

a. Contractor must provide both initial and ongoing training for staff of DCY-identified sites on the proper use, care, imaging functions, maintenance, cleaning protocols, storage, software updates, troubleshooting, and safety standards of the ultrasound machines.

b. Contractor must provide initial onboarding (in-person, virtual, etc.) and ongoing capacity-building training (refresher sessions, updates on new guidelines, competency assessments).

c. Contractor must offer training in multiple formats (ie. in-person, virtual, manuals, etc.) and at varied frequencies. Training must also include refresher sessions, updates on new guidelines, and competency assessments.

d. Training must follow the Safety and Compliance Standards: Instruction on FDA, IEC 60601-2-37, AIUM, and ISUOG guidelines, including ALARA principles, monitoring of TI and MI, and patient safety protocols.

e. Contractor must provide qualified trainers, including but not limited to, manufacturer-certified trainers, clinical educators, or other third-parties, such as partner institutions.

f. Contractor must evaluate training effectiveness (e.g., competency checklists, post-training assessments) and document the effectiveness and completion of training for DCY’s records.

3. Maintenance

a. Generally

i. Contractor must provide, and/or coordinate through certified suppliers, comprehensive maintenance and service for all ultrasound machines placed at DCY-identified sites for the duration of this Contract.

ii. Contractor must ensure that certified suppliers or third parties used for maintenance meet manufacturer specifications and with FDA regulations and international standards (e.g., IEC 60601-2-37, AIUM guidelines).

iii. Contractor must designate a point of contact for service coordination for DCY-identified sites.

iv. Equipment uptime must be 98% or higher.

v. Contractor must provide documentation of all maintenance and service visits to DCY and kept on file at each DCY- identified site.

vi. Contractor must define a process for scheduling, tracking, and confirming maintenance activities.

b. Maintenance must be provided per manufacturer specifications, and at a minimum the following:

i. Performed annually, or more frequently as recommended by the manufacturer;

ii. Inspect and calibrate key components;

iii. Clean internal and external components;

iv. Provide regular software updates (if applicable);

v. Comply with manufacturer’s maintenance guidelines;

vi. Troubleshoot and diagnose equipment failures;

vii. Repair of machines, including parts and labor; and

viii. Supply manufacturer parts or manufacturer approved-equivalent parts.

c. Support must be provided as follows:

i. 24/7 phone and/or remote technical support.

ii. Technical assistance to DCY-identified sites on machine use during DCY-designated site hours of operation.

iii. Guaranteed on-site response time within 24–48 hours of notification for service needs that prevent sites from operating the machine.

iv. Contingency options, such as provision of loaner equipment or expedited replacement, if downtime exceeds agreed limits.

b) Remote software troubleshooting.

Part 2 – Contract-Specific Terms and Conditions

A. Contract Construction and Compensation

1. Terminology

For purposes of this Contract, any references to “Offeror” in the documents that make up this Contract will mean “Contractor” as of the effective date of this Contract.

2. Compensation

In consideration of the Contractor's promises and satisfactory performance, the State will pay the Contractor the amount(s) identified in the Contract (the Fee), plus any other expenses identified as reimbursable in the Contract. In no event will payments under this Contract exceed the “not-to-exceed” amount in the Contract without the prior, written approval of the State and, when required, the Ohio Controlling Board and any other source of funding. The Contractor's right to the Fee is contingent upon the complete and satisfactory performance of the Work or, in the case of milestone payments or periodic payments of an hourly, daily, weekly, monthly, or annual rate, all relevant parts of the Work tied to the applicable milestone or period. Payment of the Fee is also contingent on the Contractor delivering a proper invoice and any other documents required by the Contract.

3. Fee Structure

The fee structure under this Contract will be a fixed fee structure per machine.

B. Ownership of Deliverables

1. License in Commercial Material

Commercial Material means anything that has been developed at private expense by the Contractor or a third party, commercially available in the marketplace, subject to intellectual property rights, and readily copied through duplication on magnetic media, paper, or other media. Examples of Commercial Material include written reports, books, pictures, videos, movies, computer programs, software, and computer source code and documentation. Commercial Material includes Commercial Software (defined below).

Use of any Commercial Material will be governed by the applicable license terms negotiated and accepted by the State. In addition to the license agreement(s) provided in Contractor’s Proposal (as negotiated and accepted by the State), if any Commercial Material is added to the Work after Contract award, Contractor must disclose the applicable license agreement(s) or other terms for any additional Commercial Material and assist the State as needed in any negotiation of the license agreement(s) or other terms.

In addition to the license or other terms applicable to the Commercial Material and except for Commercial Material that is software (“Commercial Software” as defined in the next section):

a. If the Commercial Material is copyrighted and published, the State will have the rights permitted under the Federal copyright laws for each copy of the Commercial Material delivered to it by the Contractor;

b. If the Commercial Material is patented, the State will have the rights permitted under the Federal patent laws for each copy of the Commercial Material delivered to it by the Contractor; and

c. If the Commercial Material consists of trade secrets, the State will have the same rights and duties permitted under the Federal copyright laws for each copy of the Commercial Material delivered to it by the Contractor, whether or not the material is copyrighted when delivered to the State, and the State will treat the Commercial Material as confidential. In this regard, the State will assume all obligations with respect to the Commercial Material that the Contractor assumes under the Confidentiality section of this Contract with respect to State Confidential Information.

2. Software Licenses

Commercial Software is software sold in the marketplace in substantial quantities in a substantially unaltered form from one transaction to another and that is maintained through a support program that includes regular updates and new releases. It may also include open source and/or freeware, such as GNU software, if made generally available in the marketplace, even though such does not precisely meet the above definition. It does not include shells, subroutines, and similar stock bits of software that are not made generally available in the marketplace but that the Contractor or others routinely incorporate into otherwise custom work. When applicable, all required Commercial Software and associated warranties or maintenance must be purchased in the State’s name and pursuant to terms acceptable to the State. Commercial Software must be the current and supported release version. The Contractor must provide to the State all documentation related to Commercial Software purchases, including invoices, packing slips, license agreements, and other identifying details that may be required for inventory, auditing, and accounting.

The Contractor must provide or arrange for licenses for all Commercial Software required under this Contract. Use of the Commercial Software will be governed by either the associated license agreement or the Master Contract for Software Licensing at the State’s discretion, both as negotiated and accepted by the State. For all Commercial Software, the State requires a license that provides adequate usage rights to meet the State’s current needs as identified in this Contract.

For Commercial Software, the State will have the rights in items (a) through (h) below with respect to the software. The State will not use any Commercial Software except as provided in items (a) through (h) or as expressly stated otherwise in this Contract. The Commercial Software may be:

a. Used or copied for use in or with the computer or computers for which it was acquired, including use at any State installation to which such computer or computers may be transferred.

b. Used or copied for use in or with a backup computer for disaster recovery and disaster recovery testing purposes or if any computer for which it was acquired is inoperative.

c. Reproduced for safekeeping (archives) or backup purposes.

d. Modified, adapted, or combined with other computer software, but the modified, combined, or adapted portions of the derivative software incorporating any of the Commercial Software will be subject to same restrictions set forth in this Contract.

e. Disclosed to and reproduced for use on behalf of the State by support service contractors or their subcontractors, subject to the same restrictions set forth in this Contract.

f. Used or copied for use in or transferred to a replacement computer.

However:

g. If the Commercial Software delivered under this Contract is published and copyrighted, it is licensed to the State without disclosure prohibitions.

h. If any Commercial Software is delivered under this Contract with the copyright notice in 17 U.S.C. 401, it will be presumed to be published, copyrighted, and licensed to the State without disclosure restrictions, unless a statement substantially as follows accompanies such copyright notice: “Unpublished – rights reserved under the copyright laws of the United States.’’ The State will treat such Commercial Software as Confidential Information to the extent that such is actually the case.

3. Hardware

All required hardware and associated warranties or maintenance must be purchased in the State’s name. The Contractor must provide to the State all documentation related to hardware purchases, including invoices, packing slips, use agreements, and other identifying details that may be required for inventory, auditing, and accounting.

C. Warranties, Maintenance, and Additional Insurance

1. Additional Insurance In addition to the insurance requirements in Part 3 – Standard Terms and Conditions, the Contractor shall also procure and maintain for the duration of the Contract, the insurance coverage set forth below.

a. Professional Liability (Errors and Omissions) Insurance appropriate to the Contractor’s profession, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage must be sufficiently broad to respond to the duties and obligations as is undertaken by Contractor in this Contract and must cover all applicable Contractor personnel or subcontractors who perform professional services related to this Contract.

2. Software Warranty

If this Contract involves software as a Deliverable, then, on acceptance and for 12 months after the date of acceptance of any Deliverable that includes software, the Contractor warrants as to all software developed under this Contract that: (a) the software will operate on the computer(s) for which the software is intended in the manner described in the relevant software documentation, the Contractor’s Proposal, and the Contract; (b) the software will be free of any material defects; (c) the Contractor will deliver and maintain relevant and complete software documentation, commentary, and source code; (d) the source code language used to code the software is readily available in the commercial market, widely used and accepted for the type of programming involved, and support programming in the language is reasonably available in the open market; and (e) the software and all maintenance will be provided in a professional, timely, and efficient manner.

For Commercial Software licensed from a third party that is incorporated into a Deliverable, and for which the State has not approved a separate license agreement governing that Commercial Software’s warranties as part of the RFQ process, the Contractor represents and warrants that it has done one of the following things: (a) obtained the right from the third-party licensor to commit to the warranties and maintenance obligations in this section; (b) obtained a binding commitment from the licensor to make those warranties and maintenance obligations directly to the State; or (c) fully disclosed in the Proposal any discrepancies between the requirements of this section and the commitment the third-party licensor has made.

In addition, for Commercial Software that is incorporated into a Deliverable, the Contractor will: (a) maintain or cause the third-party licensor to maintain the Commercial Software so that it operates in the manner described in the Contract (or any attachment referenced in the Contract) and relevant Commercial Software documentation; (b) supply technical bulletins and updated user guides; (c) supply the State with updates, improvements, enhancements, and modifications to the Commercial Software and documentation and, if available, the commentary and the source code; (d) correct or replace the Commercial Software and/or remedy any material programming error that is attributable to the Contractor or the third-party licensee; (e) maintain or cause the third-party licensor to maintain the commercial Software and documentation to reflect changes in the subject matter with which the Commercial Software deals; and (f) maintain or obtain a commitment from the third-party licensor to maintain the Commercial Software so that it will properly operate in conjunction with changes in the operating environment in which it is designed to operate.

For purposes of the warranties and the delivery requirements in this Contract, software documentation means well written, readily understood, clear, and concise instructions for the software's users as well as a system administrator. The software documentation will provide the users of the software with meaningful instructions on how to take full advantage of all of the capabilities designed for end users. It also means installation and system administration documentation for a system administrator to allow proper control, configuration, and management of the software. Source code means the uncompiled operating instructions for the software. However, the Contractor will not be obligated to provide source code for Commercial Software unless it is readily available from the licensor. The source code must be provided in the language in which it was written and will include commentary that will allow a competent programmer proficient in the source language to readily interpret the source code and understand the purpose of all routines and subroutines contained within the source code.

3. Software Maintenance

If this Contract involves software as a Deliverable, then, during the warranty period, as well as any optional maintenance periods that the State exercises, the Contractor must correct any material programming errors that are attributable to the Contractor within a reasonable period of time. However, the State must notify the Contractor, either orally or in writing, of a problem with the software and provide sufficient information for the Contractor to identify the problem.

The Contractor's response to a programming error will depend upon the severity of the problem. For programming errors that slow the processing of data by a small degree, render minor and non-mandatory functions of the applicable system inoperable or unstable, or require users or administrators to employ workarounds to fully use the software, Contractor will respond to the request for resolution within four business hours. Furthermore, the Contractor must begin working on a proper solution for the problem within one business day, dedicating the resources required to fix the problem. For any defects with more significant consequences, including those that render key functions of the applicable system inoperable or significantly slow processing of data, the Contractor will respond within two business hours of notice. The Contractor also must begin working on a proper solution for the problem immediately after responding and, if requested, provide on-site assistance and dedicate all available resources to resolving the problem.

For software classified as Commercial Software in the Ownership of Deliverables section and for which the State has not signed a separate license agreement, the Contractor must acquire for the State the right to maintenance for one year. That maintenance must be the third-party licensor's standard maintenance program, but at a minimum, that maintenance program must include all, updates, patches, and fixes to the software. It also must include a commitment to keep the software current with the operating environment in which it is designed to function (and, if applicable, the subject matter covered by the software) and to correct material defects in the software in a timely fashion. Additionally, the Contractor must obtain a commitment from the licensor to make maintenance available for the software for at least [five] years after the first year of maintenance. The Contractor also must obtain a commitment from the licensor to limit increases in the annual fee for maintenance to no more than 7% annually. If the licensor is unable to provide maintenance during that [five]-year period, then the licensor must be committed to doing one of the following two things: (a) give the State a pro rata refund of the license fee based on a [five]-year useful life; or (b) release the source code for the software (except third party software) to the State for use by the State solely for the purpose of maintaining the copy(ies) of the software for which the State has a proper license. For purposes of receiving the source code, the State agrees to treat it as confidential and to be obligated to the requirements under the Confidentiality section of this Contract with respect to the source code.

4. Equipment Maintenance

Upon equipment delivery and for twelve months after acceptance, the Contractor must provide equipment maintenance to keep the equipment in or restore the equipment to good working order. If the State exercises its right to any optional maintenance periods, the Contractor’s obligations hereunder will extend to those periods as well. This maintenance must include preventative and remedial maintenance, installation of safety changes, and installation of engineering changes based upon the specific needs of the individual item of equipment. This maintenance must include the repair, replacement, or exchange deemed necessary to keep the equipment in good working condition. For purposes of this Contract, equipment restored to good working condition means equipment that performs in accordance with the manufacturer's published specifications and the Contract.

The Contractor must use its best efforts to perform all fault isolation and problem determination attributed to the equipment covered under this Contract.

The Contractor must make maintenance available [12] working hours per weekday, [between 7:00 a.m. and 7:00 p.m.] Eastern Time. Travel time and expenses related to remedial and preventive maintenance will not be considered billable but will be included in the Contractor's fee for the Work during the warranty period and a part of the annual maintenance Fee during later annual maintenance periods.

The Contractor must keep the equipment in good operating condition during the warranty period and any annual maintenance period during which the State contracts for continued maintenance. The State will provide the Contractor with reasonable access to the equipment to perform maintenance. All maintenance that requires the equipment to be inoperable must be performed outside of the State's customary working hours, except when the equipment is already inoperable. Preventive or scheduled maintenance will be performed at mutually agreeable times, within the parameters of the manufacturer's published schedule.

If the Contractor is unable to provide maintenance services to meet the State's ongoing performance requirements for equipment delivered under this Contract, and if, in the State's sole opinion, the Contractor is unlikely to resume providing warranty services that meet the State's ongoing performance requirements, the Contractor will be in default. In such case, the State will be entitled to the following items from the Contractor: (a) all information necessary for the State to perform the maintenance, including logic diagrams, maintenance manuals and system and unit schematics, as modified by the Contractor; and (b) a listing of suppliers capable of supplying necessary spare parts.

Part 3 – Standard Terms and Conditions

The Standard Terms and Conditions applicable to this Contract are found at the following link:

https://procure.ohio.gov/TCond/Standard_T_C_3-31-25.pdf Part 4 – Cost Proposal The Cost Proposal Form, DCY-C-2627-0053 Cost Summary.xlsx, as fully negotiated and mutually agreed upon between the parties, is incorporated into this Contract by reference as if fully rewritten herein.

Part 5 – Required Forms

This part includes the forms described in Section 2.H., above and includes the following forms:

· Form 5a – Independent Contractor Acknowledgement Form

· Form 5b – Affirmation and Disclosure Form

· Form 5c – Preference Certification Form

· Form 5d – Offeror Redaction Justification Form

· Form 5e – Proposed Pre-Existing Materials and Commercial Software Form

· Form 5f – Mandatory Requirements Form

FORM 5a

INDEPENDENT CONTRACTOR ACKNOWLEDGEMENT FORM

The current version of the Independent Contractor Acknowledgement Form is available at: https://www.opers.org/forms-archive/PEDACKN-Non-Member-Acknowledgment.pdf.

FORM 5b

AFFIRMATION AND DISCLOSURE FORM

The current version of the Affirmation and Disclosure Form is available at:

https://dam.assets.ohio.gov/image/upload/procure.ohio.gov/pdf/StateLocalAgencies/Resources_Forms/Affirmation_and_Disclosure_Form_5-20-24_fillable_form.pdf

FORM 5c

PREFERENCE CERTIFICATION FORM

The current version of the Preference Certification Form is available at:

https://dam.assets.ohio.gov/image/upload/procure.ohio.gov/pdf/StateLocalAgencies/Resources_Forms/Preference%20Certification%20Statements%207.23.pdf

FORM 5d

OFFEROR REDACTION JUSTIFICATION FORM

An Offeror must use this chart to describe each proposed redaction. If the State takes issue with any proposed redaction, the State will contact the Offeror for clarification or revision. The Offeror may withdraw its Proposal at any time prior to the award of the Contract.