Final_RFP_758_2200000078_2_SO_FORM.PDF

Document ID: RFP 758 2200000078 Page: 1

Commonwealth of Kentucky

SOLICITATION MODIFICATION

Modification: Yes Version #: 2

TITLE: KBE/OVR All State Teaming Partner

Date Issued:

03/28/2022 Record Date:

2022-03-28

Solicitation Closes Date:

4/15/22 Time:

15:30

Solicitation No:

RFP 758 2200000078

Reason for Modification

Modification to answer potential vendor questions, attach three new agreements concerning collective bargaining and wage determination and update the Finance Cabinet address, Online Bidding Prohibited: No For Information Call:

Daniel Salvato 502-564-5862

Bid Receiving Location:

Bid Receiving

See Terms & Conditions for Bid Submission Instructions

Other KY

Vendor Customer Number:

Vendor Name:

Phone Number:

Fax Number:

Email Address:

Ordering

Address:

City, State, Zip:

Contact Name:

Contact Email:

Contact Phone Number:

Payment

Address:

City, State, Zip:

Contact Name:

Contact Email:

Contact Phone Number:

Ownership Type

__ Sole Proprietorship __ Partnership __ Corporation __ Other_________________________

SIGNATURE OF AUTHORIZED AGENT IS REQUIRED UNLESS RESPONSE

IS SUBMITTED ELECTRONICALLY. FAILURE TO SIGN SHALL RENDER

THE BID INVALID.

Signature X_________________________________________ FEIN#____________________ Date____________

All offers subject to all terms and conditions contained in this solicitation.

Document ID: RFP 758 2200000078 Page: 2

Line Items

Commodity Group: Default Commodity Group

Shipping Information

Billing Information

Document ID: RFP 758 2200000078 Page: 3

Submission Checklist

The following items will be required to be submitted with bid:

Item

OFFICE OF PROCUREMENT SERVICES

Addendum No. 1

1. Please confirm the Annual Value of the Full Food

Service contract. According to the RFP: “Contract

W9124J20D006 … has an estimated annual value of

$5,535,975.” However, records indicate that $5.5M is the total contract value for the full period of performance, making the annual value of the contract $1.1M.

The annual estimate for contract W9124J20D0006 is

$1,107,195.

2. Please provide updated customer headcount the

Full Food Service contract (W9124J20D006/awarded

KOVR does not have head count summaries.

Document Description Page 4

2200000078 KBE/OVR All State Teaming Partner

Jan 2020).

3. Please provide updated customer headcount for the Dining Facility Attendant (DFA) Contract

(#W9124818D0004/ awarded Dec 2017).

KOVR does not have head count summaries.

4. Please provide current Collective Bargaining

Agreement (CBA) and applicable Wage Determination

(WD) documents.

Please see Attachments C,D, an E.

5. Please clarify whether the Net Revenue Split will be applied to the DFA and Full Food Service work scopes in a combined way for both contracts or separately for each contract? This information will help determine estimates for our cost proposal.

Each location will maintain the same net revenue split percentage but the financials will be separate for each location.

6. Will a Termination Clause be permitted withing

Vendors Teaming Agreement with KOVR, if KOVR is not successful in retaining the DFA contract in 2023?

The awarded vendor will have the ability to choose to not renew its contract after each two year term but a single award will not be grounds for termination of contract.

7. Given the extensive request for additional information and the relative short time to provide a comprehensive response, we would like to request a

3-week extension from the current close date of 15

April 2022 to 6 May 2022.

Not at this time

8. Please clarify the number of days of service.

Attachment Q of the Full Food Service states 5 weekdays and 1 weekend day. However, Meal Count data reflects only weekday service

The contract allows for weekday and weekend service.

9. Are meal stations self-served or manned service? Manned

Document Description Page 5

10. Are all Dining Facilities open for all meal services?

No

11. Will the teaming partner have the ability to close serving lines if lack of volume necessitates?

No

12. Will the Teaming Partner have the ability to determine if a serving line can be self-served or manned service?

No

13. The estimated schedule is silent on some salient details. Could the Commonwealth’s contracting officer provide an expanded estimated schedule of activities to be accomplished in this acquisition?

a. Is this a “best value” award?

b. Is this award analogous but more flexible in concept than the federal procurement law used to award the prime contract?

c. What is the project award and start date?

d. Will discussions be held, if so, when?

e. Will a BAFO be requested?

f. Will a phase-in period be scheduled?

g. Is there a funding limit?

h. Is this a personal services contract?

Please see Section 10.9 for the estimated schedule. Method of Award is located in Section

70. The solicitation is in accordance with

Commonwealth of Kentucky

Procurement regulations. The anticipated award and start date is to be determined.

Please see Section 70 for information on Oral

Demonstrations/Presentations

(this is performed through

Microsoft Teams.) Any funding information will not be released during the solicitation. This is not a personal service contract.

14. If a change in scope is conducted will the teaming partner be allowed to recover any incurred cost?

The net revenue split shall remain static for the life of the contract.

Document Description Page 6

15. a. What deliverables are due under the RFP’s awarded contract?

b. What is meant by major schedules?

c. When will the mutually agreed upon project plan be finalized?

d. If the buyer requests additional teaming partner resources, will the teaming partner by reimbursed for their incurred cost?

e. How will the determination of the quantity and quality of the request for additional resources be made?

A mutually agreed upon start date will be determined prior to award. There will ne no reimbursement to the teaming partner for expenses as the award is a net revenue split.

Any requests for additional resources after award will be performed through a contract modification upon mutual agreement by both parties.

16. a. What is meant by the term assignment?

Could theCommonwealth define the term assignment?

Will an assignment of claims be allowed? An assignment of claims is normally required to “ collaterize” theneeded line of credit.

a. A company may not assign a different company to perform services without approval by the Commonwealth Buyer

b. Assignment of claims is required.

17. a.Could the Commonwealth expand on the process of invoicing.

b.Will FAP 111-45-00 be applicable to this and the prime contract?

A.The teaming partner will invoice the customer directly.

All payments will go directly to the teaming partner through an assignment of claims.

B. FAP 11-45-00 will be applicable to any awarded agreement.

18. a. We are not clear on this paragraph (Section

40.13.) Could the Commonwealth expand on what will

The awarded Contractor will cooperate with any and all

Document Description Page 7 trigger this clause? a. We are not clear on this paragraph. Could the Commonwealth expand on what will trigger this clause?

contractors the

Commonwealth or end user location deems necessary to perform any needed service at the location. An example is the Commonwealth contracting for fire suppression inspections through a third party and the teaming partner cooperating on the inspection procedures.

19. a. Are we to comply with both Commonwealth and Federal Public Information disclosure laws? Will both the Kentucky Open Records law and Federal

Freedom of Information Act be applicable to this cont ract and the prime contract? What federal laws/regulations are applicable to this and the prime contract?

B .What happens if proprietary and confidential information is communicated by agents or employees of the Commonwealth without consent of the contract performance party?

It will be expected that the

Vendor comply with all applicable open record/public disclosure laws. The

Commonwealth will perform any open record requests in accordance with

Commonwealth regulations.

Failure of the vendor to comply with any applicable federal or state regulations shall be grounds for possible termination for default of contract.

20. What selected financial data, formulae, and financial audits will be considered for disclosure?

All information relating to the performance of teaming partner duties shall be subject to audits and disclosure in accordance with all applicable

Commonwealth and Federal regulations.

21. a. How will the Commonwealth reimburse the teaming partner for their incurred cost should the KOVR chooseto pursue an opportunity and invoke

A. The Commonwealth will not be reimbursing the vendor for costs. The awarded teaming

Document Description Page 8 this clause?

aa. Will the Commonwealth consider removing the second paragraph from the scope of work and limit the solicitation to the project of Fort Campbell DFA and FF services?

ab. How are we to know what scope of work would be required for possible future opportunities in

Kentucky?

b.Could the Commonwealth confirm that the two prime contracts are federal commercial awards using

FAR Part 12 and 15?

c. Could the Commonwealth confirm these awards were from firm-fixed price?

d. Could the Commonwealth confirm that these awards are IDIQ (Indefinite delivery and Indefinite

Quantity) and there are no federal government guarantees of fore- casted delivery and quantities.

e. Could the Commonwealth confirm that services will be requested by Army contracting in the form of a delivery order?

f.Could the Commonwealth confirm that the prime contract is governed by a Collective Bargaining

Agree- ment?

partner shall assist KOVR with pursuing additional business opportunities.

aa. The Commonwealth will not be modifying the terms and scope of the contract.

B. The FAR governs DOD procurement for Fort Campbell but we are unable to confirm which parts.

C. Ft Campbell is a firm fixed contact. Other locations may have other practices.

D. All DOD contract values are estimates, until task orders are issued, and service is performed. Other locations may have other practices.

E. Each location could be different. The two Ft.

Campbell contracts operated by KOVR operate under task orders from the Army. Other locations may have other practices.

F. Each location could be different. The two Ft.

Campbell contracts operated by KOVR have CBAs. (Please see updated attachments.)

22. What is meant by the terms of the prime contract Each but not all location that

Document Description Page 9 shall govern the wage rates for teaming partner? KOVR will select to operate could have difference guidance for wage and hour requirements. No one contract requirement will apply off that particular site. When a prime contact has a wage and hour requirement those requirements must be followed on that site only.

23. a. It is our understanding that the employees will be employees of the teaming partner, is this correct?

b. Is it the Commonwealth’s intention to approve the teaming partners hiring of employees?

c. Who is the institution management?

d. How will OVR and institution management determine that performance of such obligations is met?

e. How will the Commonwealth reimburse the teaming partner for the mandated additional background checks?

a. This is correct, employees are employed solely by the selected teaming partner.

b. No, the Commonwealth will not approve or deny the teaming partners employee selection. The teaming partner must adhere to the host facility’s rules for accessing the facility. Each facility where KOVR may choose to work could have different requirements for enter to the site. The teaming partner’s hiring procedures will need to take those host facility rules into account.

The teaming partner will be reasonable meeting the individual contract for staffing numbers and types of positions with the correct numbers and employees that

Document Description Page 10 meet the requirements for those positions. The teaming partners ability to hire and maintain a stable workforce will be key to the teaming partners success is this relationship. The

Commonwealth does reserve the right to request a replacement of any employees it determines do not meet the facilities standards for health, safety or professionalism.

C .The SLA will always be the prime contract holder. The teaming partner is a subcontractor in conjunction with the licensed blind vendor to provide the day-to-day onsite management of each site. There will also be other stakeholders with oversight including, but not limited to

DOD.

d. OVR will rely on the customer (DOD or other customer) to ensure that contact expectations are being meet. OVR will also perform site visits to ensure contract compliance.

Self-reporting on the ongoing training and education on the blind vendor performance and education to the SLA will

Document Description Page 11 ensure that the education selection is being meet. KBE is looking for gained independence in the operation by the assigned blind manager/s. Failure of the teaming partner to maintain health/safety/performance standards could be grounds for termination of default of contract.

24. How will the Commonwealth reimburse the teaming partner for any increase in the cost of commercial general liability insurance due to the additional Insured’s Rider clause?

The vendor will not be reimbursed for additional costs. Any costs should be listed on the locations p/l sheet and subject to audit.

25. Paragraph d requests the inclusion of CPARS reports for all DoD contracts for the past 3 years. If the contractor has been performing a Randolph

Sheppard Act contract as a teaming partner, the prime contractor owns the CPARS. How will the

CPARS be assessed?

The CPARS is assessed and completed by the SLA. The teaming partner will be consulted for comment on the CPARS with the final narrative prepared and submitted by the

SLA.

26. a.Will any preference be given to any Kentucky resident bidders? Will the Kentucky resident bidder be given any preference for being a small business or any other set-aside preferences?

b. While the evaluation factors are provided none of the subfactors are.

- Will the Commonwealth provide any subfactors

The Commonwealth will evaluate all proposals in accordance with the Model Procurement Code and all applicable regulations. All resident bidder preferences shall be in accordance with Commonwealth regulations.

The Commonwealth has provided all data for the

Document Description Page 12 and their relative importance so that the proposed selected bidder represents the best value to the

Commonwealth?

Will the evaluators use a trade-off process?

How will the evaluators assess contract performance on recent and relevant contracts?

Will the evaluators use any performance/quality/business relationship questionnaires and/or interviews?

Will any comparative analyses be performed?

Will any metrics be used to assist in selecting the best proposal for the Commonwealth?

Will a Technical/risk rating process to be used to determine the risk associated with a performance approach?

Will the Commonwealth use the DoD’s best practice process?

Will the Commonwealth provide bidders/offerors an opportunity to clarify certain aspects of their proposal and to resolve minor or clerical mistakes?.

proposal reviews in Section

70. The Commonwealth has determined that set aside preferences are unconstitutional and they shall not be used. All other determinations for award are stated in Section 70.

Document Description Page 13

ELECTRONIC PROPOSAL SUBMISSION CHECKLIST

Proposals shall be received by electronic submission in the eProcurement system.

An electronic proposal shall be authorized by the proper agent of the firm by the act of submitting it electronically through the eProcurement system.

Proposal information MUST be completed online. Response must contain all required information for the Solicitation. All bidders MUST be registered in the Commonwealth eProcurement System via the Vendor Self Service System at https://emars311.ky.gov/ webapp/vssprdonline3111d/AltSelfService

Allow 24 – 48 hours to complete Vendor Registration. Vendors must be logged in to their Vendor Self Service (VSS) account in order to submit a response. Registrations completed the day of bid closing must be completed by the Vendor in the VSS portal.

The Customer Resource Center is not able to complete registrations and activate accounts on the same day. Closing dates will not be extended for Vendors not registered by the date/time of the bid closing. Vendor Self Service Registration Guides are provided at https://finance.ky.gov/services/eprocurement/Pages/doingbusiness.aspx

All bidders are cautioned to begin their electronic submission in sufficient time to complete before the closing date and time. Delays due to technical difficulties or document upload impediments shall not be justification for acceptance of a late bid or proposal. Vendor attention to this advisory is encouraged. If you need assistance, please contact the Customer Resource Center (CRC) by email at Finance.CRCGroup@ky.gov or phone 502-564-9641 or toll-free 877-973-HELP (4357).

Proposals shall be submitted in three (3) parts: The Technical Proposal, the Cost Proposal, and Proprietary Information. Each part shall consist of one document attachment. Do not submit multiple document attachments as Technical, Cost or Proprietary. All files shall be labeled accordingly. Attachments may not exceed 65,000

KB.

Proposals submitted online must be in an “Accepted” status and shall be assigned a date and time stamp from the eProcurement system at the time of final acceptance and formal submission by the vendor. The system will not allow submission of an online proposal after the published date and time for closing.

A proposal may be modified or withdrawn by electronic or written notice ONLY if received prior to the bid closing date and time. An electronic offer may be modified by applying the

Document Description Page 14

2200000078 KBE/OVR All State Teaming Partner https://emars311.ky.gov/webapp/vssprdonline3111d/AltSelfService https://emars311.ky.gov/webapp/vssprdonline3111d/AltSelfService https://finance.ky.gov/services/eprocurement/Pages/doingbusiness.aspx mailto:Finance.CRCGroup@ky.gov appropriate electronic signature and following the procedure in the state’s eProcurement signature.

The vendor MUST include the following with the proposal submission.

If the items highlighted below are not submitted with the proposal submission, the Commonwealth MUST deem the proposal non-responsive and SHALL NOT consider for award.

FACE OF SOLICITATION - SIGNED [see Section 60.4]

*PROPOSED TECHNICAL SOLUTION UNDER SEALED COVER AND BY

CLOSING DATE AND TIME [see Sections 60.5 – 60.7]

*PROPOSED COST SOLUTION UNDER SEALED COVER AND BY CLOSING

DATE AND TIME [see Section 60.8 & Attachment B]

All other items MUST be submitted prior to award.

TRANSMITTAL LETTER [see Section 60.6(A)] REVENUE FORM 10A100 KENTUCKY TAX REGISTRATION APPLICATION (see Section 60.6 (C)]

CERTIFICATE OF AUTHORITY- REGISTRATION WITH SECRETARY OF STATE

BY A FOREIGN ENTITY [see Section 60.6 (D)]

REQUIRED ANNUAL AFFIDAVIT AND OTHER AFFIDAVIT(S) [see Attachment C]

EEO FORMS IF APPLICABLE [see Section 40.21]

*The Commonwealth defines SEALED as “a closure that must be broken to be opened and that thus reveals tampering”. (Merriam-

Webster Dictionary, http://www.merriam-webster.com/dictionary/seal)

Document Description Page 15

Request for Proposal (RFP)

For KBE/OVR All State Teaming Partner

RFP 758 220000078

Release Date: March 16, 2022

***See Section 10.9 for Site Visit Information***

CLOSING DATE AND TIME: April 15, 2022

(See Section 10.9 of this RFP for the Estimated Schedule of RFP Activities)

Issued by The Finance and Administration Cabinet

Commonwealth Buyer:

Daniel Salvato CPPB, KCPM Assistant Director Division of Goods and Services

COMMONWEALTH OF KENTUCKY

FINANCE AND ADMINISTRATION CABINET

Office of Procurement Services

200 Mero Street, 5th Floor Frankfort, Ky. 40601

(502) 564-5862 daniel.salvato@ky.gov

TABLE OF CONTENTS

Proposal Submission Checklist Section 10 – Introduction and Overview Section 20 – Background and Present System Summary Section 30 – Commonwealth Office of Technology Requirements

Document Description Page 16

Section 40 – Procurement Requirements Section 50 – Scope of Work Section 60 – Proposal Submission Section 70 – Proposal Evaluation Section 80 – Negotiations

SECTION 10 – Introduction and Overview

10.1 Purpose

The purpose of this Request for Proposal (RFP) is to solicit proposals for competitive negotiations pursuant to 200 KAR 5:307. The Kentucky Office of Vocational Rehabilitation is requesting proposals for a teaming partner for the Fort Campbell Training Center.

10.2 Issuing Office

The Commonwealth of Kentucky, Finance and Administration Cabinet, Office of Procurement Services, is issuing this RFP on behalf of the Kentucky Office of Vocational Rehabilitation. The Finance and Administration Cabinet is the only office authorized to change, modify, amend, alter, or clarify the specifications, terms and conditions of this RFP.

A contract, based on this RFP, may or may not be awarded. Any contract award from this RFP is invalid until properly approved and executed by the Finance and Administration Cabinet.

10.3 Access to Solicitation, RFP, and Addenda

The Commonwealth wants each prospective vendor to have full and complete information on which to base a proposal response. Only information presented or referred to in this RFP and any additional written information that is supplied by the Commonwealth Buyer shall be used by vendors in preparing the response.

The solicitation, addenda, and attachments shall be posted to the Kentucky Vendor Self Service site at https://emars311.ky.gov/webapp/vssprdonline3111d/ AltSelfService It is not necessary to register to access the solicitation. Unregistered vendors can access solicitations by clicking on public access.

In the event of any conflict or variation between the solicitation or modification as issued by the Commonwealth and the vendor’s response, the version as issued shall prevail.

10.4 RFP Terminology

For the purpose of this RFP, the following terms may be used interchangeably:

Document Description Page 17 o Proposer, Offeror, Contractor, Provider, Teaming Partner or Vendor o Commonwealth Buyer, Buyer, Purchaser, or Contract Officer o RFP, Solicitation, or Procurement o Bid, Proposal, or Offer o Commonwealth of Kentucky, Commonwealth, or State, Agency, Office of Vocational Rehabilitation o Fiscal Year will be defined as the Commonwealth fiscal year: July 1 through June 30 o Biennium will be defined as the Commonwealth biennium: July

1 of each even numbered year through June 30 of the next even numbered year o Requirements that include the words “Shall”, “Will”, “Must” indicate a mandatory requirement

10.5 Restrictions on Communications

The Commonwealth Buyer named on the Cover Sheet of this RFP shall be the sole point of contact throughout the procurement process. All communications, oral and written (regular, express, or electronic mail, or fax), concerning this procurement shall be addressed to the Buyer.

For violation of this provision, the Commonwealth shall reserve the right to disqualify the vendors’ proposal response.

10.6 Written Questions Regarding this RFP

Vendors are encouraged to submit written questions pursuant to Section 10.9 of this RFP. Written questions shall be submitted to the Commonwealth Buyer via email at daniel.salvato@ky.gov. Vendors should submit questions by email on Vendors Question Form. No questions shall be accepted after the date(s) listed in Section 10.9 unless the question(s) is considered material to the procurement. The Commonwealth shall respond to salient questions in writing by issuing an addendum to the solicitation. The addendum shall be posted to the Kentucky Vendor Self Service site.

10.7 Notification of Award of Contract

The procurement process will provide for the evaluation of proposals and selection of the successful proposal in accordance with State law and regulations. KRS Chapter 45A of the Kentucky Model Procurement Code provides the regulatory framework for the procurement of services by State agencies.

All applicable statutes, regulations, policies and requirements shall become a part of an award as well as the Information Technology requirements.

Document Description Page 18

To view the award of contract(s) and the contractor(s) receiving the award(s) for this solicitation, access the Kentucky Vendor Self Service site at https:// emars311.ky.gov/webapp/vssprdonline3111d/AltSelfService .

Vendors can search for the solicitation title or number in the keyword search field, or can filter their search for only awarded solicitations by clicking on Advanced Search and changing the status to “Awarded”. The award(s) information can be accessed by clicking on the details button of the solicitation and clicking the “Notice of Award” tab. It is the vendor’s responsibility to review this information in a timely fashion. No other notification of the results of an award of contract will be provided.

10.8 Protest

Pursuant to KRS 45A.285, the Secretary of the Finance and Administration Cabinet, or his designee, shall have authority to determine protests and other controversies of actual or prospective offerors in connection with the solicitations or selection for award of a contract.

Any actual or prospective offeror or contractor, who is aggrieved in connection with solicitation or selection for award of a contract, may a file protest with the Secretary of the Finance and Administration Cabinet. A protest or notice of other controversy must be filed promptly and in any event within two (2) calendar weeks after such aggrieved person knows or should have known of the facts giving rise thereto. All protests or notices of other controversies must be in writing and shall be addressed and mailed to:

Holly M. Johnson, Secretary

COMMONWEALTH OF KENTUCKY

FINANCE AND ADMINISTRATION CABINET

200 Mero Street, 5th Floor Frankfort, Ky. 40622

The Secretary of Finance and Administration Cabinet shall promptly issue a decision in writing. A copy of that decision shall be mailed or otherwise furnished to the aggrieved party and shall state the reasons for the action taken.

The decision by the Secretary of the Finance and Administration Cabinet shall be final and conclusive.

10.9 Estimated Schedule of RFP Activities

The following table presents the anticipated schedule for major activities associated with the RFP distribution, proposal submission, proposal evaluation process, and contract award. The Commonwealth reserves the right at its sole

Document Description Page 19 discretion to change the Schedule of Activities, including the associated dates and times.

Anticipated Schedule of Activities

Release of RFP

March 16, 2022

Vendors’ Written Questions due by 12:00 PM ET

(SUBMIT QUESTIONS ON VENDORS’ QUESTION FORM)

March 23, 2022 at

12 PM ET

Commonwealth’s Response to 1st Set of Vendors’ Written Questions

March 25, 2022

Site Visit : Vendors shall contact the Commonwealth Buyer (daniel.salvato@ky.gov) by March 25, 2022 at 10 AM CT to attend the site visit. A maximum of two representatives will be allowed to attend the visit and all Federal Regulation shall apply for access to the site.

March 30, 2022 at

10 AM CT

Vendors’ 2nd set of Written Questions due by 12:00 PM ET

(SUBMIT QUESTIONS ON VENDORS’ QUESTION FORM)

April 1, 2022 at

12 PM ET

Commonwealth’s Response to 2nd Set of Vendors’ Written Questions

April 5, 2022

Proposals due by 3:30 PM ET

April 15, 2022

SECTION 20- BACKGROUND AND PRESENT SYSTEM SUMMARY

20.1 Background

The State Licensing Agency (SLA,) with input from the Blind Vendor Committee, assigns a Licensed Blind Vendor (“Blind Vendor”) to manage vending contracts awarded. The Blind Vendor may elect to use an established food services company to assist them in their management of the contract and train them in the food service businesses. Such companies are referred to as a Teaming Partner, and are selected through this competitive bidding process in accordance with the Kentucky Model Procurement Code codified in KRS Chapter 45A. The successful bidder will be the Teaming Partner that will work in partnership with KOVR and the assigned Blind Vendor to carry out food service operations and train the Blind Vendor in all areas of the business operation.

Document Description Page 20 mailto:daniel.salvato@ky.gov

SECTION 30- COMMONWEALTH OFFICE

OF TECHNOLOGY (cot) REQUIREMENTS

This section has been intentionally left blank, as it does not apply to this procurement.

SECTION 40-PROCUREMENT REQUIREMENTS

40.1 Procurement Requirements

Procurement requirements are listed under “Procurement Laws, Preference, Regulations and Policies” and “Response to Solicitation” located on the eProcurement Web page at https://finance.ky.gov/eProcurement/Pages/procurement-laws-regulations-and-policies.aspx and https://finance.ky.gov/eProcurement/ Pages/procurement-laws-regulations-and-policies.aspx respectively. The vendor must comply with all applicable statutes, regulations and policies related to this procurement.

40.2 Contract Components and Order of Precedence

The Commonwealth’s acceptance of the contractor’s offer in response to the solicitation, indicated by the issuance of a contract award by the Office of Procurement Services, shall create a valid contract between the Parties consisting of the following:

1. Procurement Statutes, Regulations and Policies

2. Any written Agreement between the Parties;

3. Any Addenda to the Solicitation;

4. The Solicitation and all attachments

5. Any Best and Final Offer;

6. Any clarifications concerning the Contractor’s proposal in response to the Solicitation;

7. The Contractor’s proposal in response to the Solicitation.

In the event of any conflict between or among the provisions contained in the contract, the order of precedence shall be as enumerated above.

40.3 Final Agreement

The contract represents the entire agreement between the parties with respect to the subject matter hereof. Prior negotiations, representations, or agreements, either written or oral, between the parties hereto relating to the subject matter hereof shall be of no effect upon this contract.

40.4 Contract Provisions

Document Description Page 21

2200000078 KBE/OVR All State Teaming Partner https://finance.ky.gov/eProcurement/Pages/procurement-laws-regulations-and-policies.aspx https://finance.ky.gov/eProcurement/Pages/procurement-laws-regulations-and-policies.aspx https://finance.ky.gov/eProcurement/Pages/procurement-laws-regulations-and-policies.aspx https://finance.ky.gov/eProcurement/Pages/procurement-laws-regulations-and-policies.aspx

If any provision of this contract (including items incorporated by reference) is declared or found to be illegal, unenforceable, or void, then both the Commonwealth and the contractor shall be relieved of all obligations arising under such provision. If the remainder of this contract is capable of performance, it shall not be affected by such declaration or finding and shall be fully performed.

40.5 Type of Contract

The contract proposed in response to this solicitation shall be on the basis of a firm fixed unit price for the elements listed in this solicitation. This solicitation is specifically not intended to solicit proposals for contracts on the basis of cost-plus, open-ended rate schedule, nor any non-fixed price arrangement.

40.6 Contract Usage

As a result of this RFP, the contractual agreement with the selected vendor will in no way obligate the Commonwealth of Kentucky to purchase any services or equipment under this contract. The Commonwealth agrees, in entering into any contract, to purchase only such services in such quantities as necessary to meet the actual requirements as determined by the Commonwealth.

40.7 Addition or Deletion of Items or Services

The Office of Procurement Services reserves the right to add new and similar items, by issuing a contract modification, to this contract with the consent of the vendor. Until such time as the vendor receives a modification, the vendor shall not accept delivery orders from any agency referencing such items or services.

40.8 Changes and Modifications to the Contract

Pursuant to KRS 45A.210 (1) and 200 KAR 5:311, no modification or change of any provision in the contract shall be made, or construed to have been made, unless such modification is mutually agreed to in writing by the contractor and the Commonwealth, and incorporated as a written amendment to the contract and processed through the Office of Procurement Services and approved by the Finance and Administration Cabinet prior to the effective date of such modification or change pursuant to KRS 45A.210(1) and 200 KAR 5:311.

Memorandum of understanding, written clarification, and/or correspondence shall not be construed as amendments to the contract.

If the contractor finds at any time that existing conditions made modification of the contract necessary, it shall promptly report such matters to the Commonwealth Buyer for consideration and decision.

40.9 Changes in Scope

The Commonwealth may, at any time by written order, make changes within the general scope of the contract. No changes in scope are to be conducted except at the approval of the Commonwealth.

Document Description Page 22

40.10 Contract Conformance

If the Commonwealth Buyer determines that deliverables due under the contract are not in conformance with the terms and conditions of the contract and the mutually agreed-upon project plan, the Buyer may request the contractor to deliver assurances in the form of additional contractor resources and to demonstrate that other major schedules will not be affected. The Commonwealth shall determine the quantity and quality of such additional resources and failure to comply may constitute default by the contractor.

40.11 Assignment

The contract shall not be assigned in whole or in part without the prior written consent of the Commonwealth Buyer.

40.12 Payment

The Commonwealth will make payment within thirty (30) working days of receipt of contractor's invoice or of acceptance of goods and/or services in accordance with KRS 45.453 and KRS 45.454.

Payments are predicated upon successful completion and acceptance of the described work, services, supplies, or commodities, and delivery of the required documentation. Invoices for payment shall be submitted to the agency contact person or his representative.

40.13 Contractor Cooperation in Related Efforts

The Commonwealth of Kentucky may undertake or award other contracts for additional or related work, services, supplies, or commodities, and the contractor shall fully cooperate with such other contractors and Commonwealth employees.

The contractor shall not commit or permit any act that will interfere with the performance of work by any other contractor or by Commonwealth employees.

40.14 Contractor Affiliation

"Affiliate" shall mean a branch, division or subsidiary that is effectively controlled by another party. If any affiliate of the contractor shall take any action that, if done by the contractor, would constitute a breach of this agreement, the same shall be deemed a breach by such party with like legal effect.

40.15 Commonwealth Property

The contractor shall be responsible for the proper custody and care of any Commonwealth-owned property furnished for contractor's use in connections with the performance of this contract. The contractor shall reimburse the Commonwealth for its loss or damage, normal wear and tear excepted.

40.16 Confidentiality of Contract Terms

The contractor and the Commonwealth agree that all information communicated between them before the effective date of the contract shall be received in strict

Document Description Page 23 confidence and shall not be necessarily disclosed by the receiving party, its agents, or employees without prior written consent of the other party. Such material will be kept confidential subject to Commonwealth and Federal public information disclosure laws.

Upon signing of the contract by all parties, terms of the contract become available to the public, pursuant to the provisions of the Kentucky Revised Statutes.

The contractor shall have an appropriate agreement with its subcontractors extending these confidentiality requirements to all subcontractors’ employees.

40.17 Confidential Information

The contractor shall comply with the provisions of the Privacy Act of 1974 and instruct its employees to use the same degree of care as it uses with its own data to keep confidential information concerning client data, the business of the Commonwealth, its financial affairs, its relations with its citizens and its employees, as well as any other information which may be specifically classified as confidential by the Commonwealth in writing to the contractor. All Federal and State Regulations and Statutes related to confidentiality shall be applicable to the contractor. The contractor shall have an appropriate agreement with its employees, and any subcontractor employees, to that effect, provided however, that the foregoing will not apply to:

A. Information which the Commonwealth has released in writing from being maintained in confidence;

B. Information which at the time of disclosure is in the public domain by having been printed an published and available to the public in libraries or other public places where such data is usually collected; or

C. Information, which, after disclosure, becomes part of the public domain as defined above, thorough no act of the contractor.

40.18 Advertising Award

The contractor shall not refer to the award of contract in commercial advertising in such a manner as to state or imply that the firm or its services are endorsed or preferred by the Commonwealth of Kentucky without the expressed written consent of the agency technical contact person. (see Section 50.4)

40.19 Patent or Copyright Infringement

The contractor shall report to the Commonwealth promptly and in reasonable written detail, each notice of claim of patent or copyright infringement based on the performance of this contract of which the contractor has knowledge.

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The Commonwealth agrees to notify the contractor promptly, in writing, of any such claim, suit or proceeding, and at the contractor's expense give the contractor proper and full information needed to settle and/or defend any such claim, suit or proceeding.

If, in the contractor's opinion, the equipment, materials, or information mentioned in the paragraphs above is likely to or does become the subject of a claim or infringement of a United States patent or copyright, then without diminishing the contractor's obligation to satisfy any final award, the contractor may, with the Commonwealth's written consent, substitute other equally suitable equipment, materials, and information, or at the contractor's options and expense, obtain the right for the Commonwealth to continue the use of such equipment, materials, and information.

The Commonwealth agrees that the contractor has the right to defend, or at its option, to settle and the contractor agrees to defend at its own expense, or at its option to settle, any claim, suit or proceeding brought against the Commonwealth on the issue of infringement of any United States patent or copyright or any product, or any part thereof, supplied by the contractor to the Commonwealth under this agreement. The contractor agrees to pay any final judgment entered against the Commonwealth on such issue in any suit or proceeding defended by the contractor.

If principles of governmental or public law are involved, the Commonwealth may participate in the defense of any such action, but no costs or expenses shall be incurred for the account of the contractor without the contractor's written consent.

The contractor shall have no liability for any infringement based upon:

A. the combination of such product or part with any other product or part not furnished to the Commonwealth by the contractor

B. the modification of such product or part unless such modification was made by the contractor

C. the use of such product or part in a manner for which it was not designed

40.20 Permits, Licenses, Taxes and Commonwealth Registration

The contractor shall procure all necessary permits and licenses and abide by all applicable laws, regulations, and ordinances of all Federal, State, and local governments in which work under this contract is performed.

The contractor shall maintain certification of authority to conduct business in the Commonwealth of Kentucky during the term of this contract. Such registration is obtained from the Secretary of State, who will also provide the certification

Document Description Page 25 thereof. However, the contractor need not be registered as a prerequisite for responding to the RFP. Additional local registration or license may be required.

The contractor shall pay any sales, use, and personal property taxes arising out of this contract and the transaction contemplated hereby. Any other taxes levied upon this contract, the transaction, or the equipment or services delivered pursuant hereto shall be borne by the contractor.

40.21 EEO Requirements

The Equal Employment Opportunity Act of 1978 applies to All State government projects with an estimated value exceeding $500,000. The contractor shall comply with all terms and conditions of the Act.

https://finance.ky.gov/office-of-the-secretary/Pages/finance-forms.aspx (Click on Office of the Controller and scroll down to Procurement section.)

40.22 Provisions for Termination of the Contract

Any contract resulting from this solicitation shall be subject to the termination provisions set forth in 200 KAR 5:312.

40.23 Bankruptcy

In the event the contractor becomes the subject debtor in a case pending under the Federal Bankruptcy Code, the Commonwealth's right to terminate this contract may be subject to the rights of a trustee in bankruptcy to assume or assign this contract. The trustee shall not have the right to assume or assign this contract unless the trustee (a) promptly cures all defaults under this contract; (b) promptly compensates the Commonwealth for the monetary damages incurred as a result of such default, and (c) provides adequate assurance of future performance, as determined by the Commonwealth.

40.24 Conformance with Commonwealth & Federal Laws/Regulations

This contract shall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky. Any action brought against the Commonwealth on the contract, including but not limited to actions either for breach of contract or for enforcement of the contract, shall be brought in Franklin Circuit Court, Franklin County, Kentucky in accordance with KRS 45A.245.

40.25 Accessibility

Vendor hereby warrants that the products or services to be provided under this contract comply with the accessibility requirements of Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794d), and its implementing regulations set forth at Title 36, Code of Federal Regulations, part 1194. Vendor further warrants that the products or services to be provided under this contract comply with existing federal standards established under Section 255 of the

Document Description Page 26 https://finance.ky.gov/office-of-the-secretary/Pages/finance-forms.aspx

Federal Telecommunications Act of 1996 (47 U.S.C. § 255), and its implementing regulations set forth at Title 36, Code of Federal Regulations, part 1193, to the extent the vendor's products or services may be covered by that act. Vendor agrees to promptly respond to and resolve any complaint regarding accessibility of its products or services which is brought to its attention.

40.26 Access to Records

The state agency certifies that it is in compliance with the provisions of KRS 45A.695, "Access to contractor's books, documents, papers, records, or other evidence directly pertinent to the contract." The Contractor, as defined in KRS 45A.030, agrees that the contracting agency, the Finance and Administration Cabinet, the Auditor of Public Accounts, and the Legislative Research Commission, or their duly authorized representatives, shall have access to any books, documents, papers, records, or other evidence, which are directly pertinent to this agreement for the purpose of financial audit or program review. The Contractor also recognizes that any books, documents, papers, records, or other evidence, received during a financial audit or program review shall be subject to the Kentucky Open Records Act, KRS 61.870 to 61.884. Records and other prequalification information confidentially disclosed as part of the bid process shall not be deemed as directly pertinent to the agreement and shall be exempt from disclosure as provided in KRS 61.878(1)(c).

40.27 Prohibitions of Certain Conflicts of Interest

In accordance with KRS 45A.340, the contractor represents and warrants, and the Commonwealth relies upon such representation and warranty, that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its services. The contractor further represents and warrants that in the performance of the contract, no person, including any subcontractor, having any such interest shall be employed.

In accordance with KRS 45A.340 and KRS 11A.040 (4), the contractor agrees that it shall not knowingly allow any official or employee of the Commonwealth who exercises any function or responsibility in the review or approval of the undertaking or carrying out of this contract to voluntarily acquire any ownership interest, direct or indirect, in the contract prior to the completion of the contract.

40.28 No Contingent Fees

No person or selling agency shall be employed or retained or given anything of monetary value to solicit or secure this contract, excepting bona fide employees of the offeror or bona fide established commercial or selling agencies maintained by the offeror for the purpose of securing business. For breach or violation of this provision, the Commonwealth shall have the right to reject the proposal or cancel the contract without liability.

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40.29 Vendor Response and Proprietary Information

The RFP specifies the format, required information, and general content of proposals submitted in response to the RFP. The Finance and Administration Cabinet will not disclose any portions of the proposals prior to Contract Award to anyone outside the Finance and Administration Cabinet, representatives of the agency for whose benefit the contract is proposed, representatives of the Federal Government, if required, and the members of the evaluation committees. After a contract is awarded in whole or in part, the Commonwealth shall have the right to duplicate, use, or disclose all proposal data submitted by vendors in response to this RFP as a matter of public record. Although the Commonwealth recognizes the vendor's possible interest in preserving selected data which may be part of a proposal, the Commonwealth must treat such information as provided by the Kentucky Open Records Act, KRS

61.870 et sequitur.

Informational areas which normally might be considered proprietary shall be limited to individual personnel data, customer references, selected financial data, formulae, and financial audits which, if disclosed, would permit an unfair advantage to competitors. If a proposal contains information in these areas that a vendor declares proprietary in nature and not available for public disclosure, the vendor shall declare in the Transmittal Letter [see Section 60.6 (A)] the inclusion of proprietary information and shall noticeably label as proprietary each sheet containing such information. Proprietary information shall be submitted under separate sealed cover marked “Proprietary Data”. Proposals containing information declared by the vendor to be proprietary, either in whole or in part, outside the areas listed above may be deemed non-responsive to the RFP and may be rejected.

40.30 Contract Claims

The Parties acknowledge that KRS 45A.225 to 45A.290 governs contract claims.

40.31 Limitation of Liability

The liability of the Commonwealth related to contractual damages is set forth in

KRS 45A.245.

40.32 Discrimination (Effective April 8, 2015)

Discrimination (because of race, religion, color, national origin, sex, sexual orientation, gender identity, age, or disability) is prohibited. This section applies only to contracts utilizing federal funds, in whole or in part. During the performance of this contract, the contractor agrees as follows:

1. The contractor will not discriminate against any employee or applicant for employment because of race, religion, color, national origin, sex, sexual orientation, gender identity, or age. The contractor further agrees to comply with the provisions of the Americans with Disabilities Act (ADA), Public Law 101-336, Document Description Page 28 and applicable federal regulations relating thereto prohibiting discrimination against otherwise qualified disabled individuals under any program or activity. The contractor agrees to provide, upon request, needed reasonable accommodations. The contractor will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, religion, color, national origin, sex, sexual orientation, gender identity, age or disability. Such action shall include, but not be limited to the following; employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensations; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non-discrimination clause.

2. The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, religion, color, national origin, sex, sexual orientation, gender…