Document ID: RFP 758 2300000065 Page: 1

Commonwealth of Kentucky

SOLICITATION

Modification: No Version #:

TITLE: Mobile Classroom Leasing for EKY Flood Response

Date Issued:

08/23/2022 Record Date:

2022-08-23

Solicitation Closes Date:

9/2/22 Time:

15:00

Solicitation No:

RFP 758 2300000065

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 2300000065 Page: 2

Line Items

Commodity Group: Default

Line CL Description Quantity UOM Unit Cost Line Total or Contract Amnt

1 Mobile Classroom Leasing for EKY Flood Response

1.00000 EA

Comm Code Comm Description Manufacturer Model # Manuf Part #

97140 Mobile Office Rental or Lease

Extended Description Mobile Classroom Leasing for EKY Flood Response

Shipping Information Various Shipping

See Extended Description

Various KY

Billing Information Various Billing

See Extended Description

Various KY

Document ID: RFP 758 2300000065 Page: 3

Submission Checklist

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

Item

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 appropriate electronic signature and following the procedure in the state’s eProcurement signature.

Document Description Page 4

2300000065 Mobile Classroom Leasing for EKY Flood Response https://emars311.ky.gov/webapp/vssprdonline3111d/AltSelfService https://emars311.ky.gov/webapp/vssprdonline3111d/AltSelfService https://finance.ky.gov/services/eprocurement/Pages/doingbusiness.aspx https://finance.ky.gov/services/eprocurement/Pages/doingbusiness.aspx mailto:Finance.CRCGroup@ky.gov

The vendor MUST include the following with the proposal submission.

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

PROPOSED TECHNICAL SOLUTION

PROPOSED COST SOLUTION

TRANSMITTAL LETTER [see Section 60.6(A)]

All other items MUST be submitted prior to award.

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]

*Please see Section - The Protection of Personal Information Security and Breach Investigation Procedures and Practice Act (KRS 61.931), et seq.

effective January 1, 2015.

Document Description Page 5

Request for Proposal (RFP)

For Mobile Classroom Leasing for EKY Flood Response

RFP 758 230000065

Release Date: August 23, 2022 CLOSING DATE AND TIME September 2 at 3:30pm ET

(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

Purchasing Agent

COMMONWEALTH OF KENTUCKY

FINANCE AND ADMINISTRATION CABINET

Office of Procurement Services

200 Mero Street, 5th Floor

FRANKFORT KY 40622

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

Document Description Page 6

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 Mobile Classroom Leasing for Eastern Kentucky Flood Response.

It is the intention of the Commonwealth to award multiple master agreements to provide solutions for student classrooms affected by the Eastern Kentucky Flood.

10.2 Issuing Office

The Commonwealth of Kentucky, Finance and Administration Cabinet, Office of Procurement Services, is issuing this RFP on behalf of Kentucky Emergency Management/ Kentucky Department of Education. 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 link 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.

Document Description Page 7 https://emars311.ky.gov/webapp/vssprdonline3111d/AltSelfService https://emars311.ky.gov/webapp/vssprdonline3111d/AltSelfService

10.4 RFP Terminology

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

o Proposer, Offeror, Contractor, Provider, 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, Kentucky Emergency Management/ Kentucky Department of Education 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,), 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 on Attachment D 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.

Document Description Page 8

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

The Commonwealth Buyer will email a Notification of Award to all vendors who submitted a proposal in response to the RFP. No other notification of the results of an award of contract will be provided.

For additional award information, vendors may email the Commonwealth Buyer.

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 discretion to change the Schedule of Activities, including the associated dates and times.

Anticipated Schedule of Activities

Document Description Page 9

Release of RFP

August 23, 2022

1st Set Of Vendors’ Written Questions due by 6 PM ET

(SUBMIT QUESTIONS ON ATTACHMENT D-VENDORS’

QUESTION FORM)

August 25, 2022

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

August 26, 2022

Proposals due by 3:30 PM ET

September 2, SECTION 20 – BACKGROUND AND PRESENT SYSTEM SUMMARY

20.1 Background

Beginning on July 26, 2022, and continuing, a severe weather system generating multiple rounds of heavy torrential rain, creating flooding, flash flooding, mudslides, and landslides is impacting the Commonwealth of Kentucky; creating dangerous conditions and damage to public infrastructure, utility distribution systems, and private properties. An executive order was issued on July 28, 2022 (Executive Order 2022-457) declaring a state of emergency.

Multiple school districts were affected in the floods creating a need for temporary mobile classrooms. The estimated need is as follows and may be adjusted as damaged buildings are inspected.

Jenkins Independent Schools= 3 Classrooms Knott County= 14-16 Classrooms Letcher County= 50 Classrooms

Please note that the needs vary from elementary to high school. The Commonwealth is not defining a certain type of mobile classroom but is requesting that vendors provide multiple solutions for mobile classroom needs.

SECTION 30 – SECTION 30 LEFT BLANK

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/services/eprocurement/Pages/

Document Description Page 10 https://finance.ky.gov/services/eprocurement/Pages/LawsPrefRegsPolicies.aspx

LawsPrefRegsPolicies.aspx and https://finance.ky.gov/services/eprocurement/ Pages/doingbusiness.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

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

Document Description Page 11

2300000065 Mobile Classroom Leasing for EKY Flood Response https://finance.ky.gov/services/eprocurement/Pages/LawsPrefRegsPolicies.aspx 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.

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

Document Description Page 12

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 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

Document Description Page 13 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.

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

Document Description Page 14 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 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/services/eprocurement/Pages/doingbusiness.aspx

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.

Document Description Page 15

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 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).

Document Description Page 16

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.

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

Document Description Page 17 proprietary each file containing such information. Proprietary information shall be submitted separately and identified as “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

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, 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 identity, age or disability.

3. The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or

Document Description Page 18 other contract or understanding, a notice advising the said labor union or workers' representative of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance.

4. The contractor will comply with all provisions of Executive Order No. 11246 of September 24, 1965 as amended, and of the rules, regulations and relevant orders of the Secretary of Labor.

5. The contractor will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, as amended, and by the rules, regulations and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders.

6. In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations or orders, this contract may be cancelled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further government contracts or federally-assisted construction contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, as amended, and such other sanctions may be imposed and remedies invoked as provided in or as otherwise provided by law.

7. The contractor will include the provisions of paragraphs (1) through

(7) of section 202 of Executive Order 11246 in every subcontract or purchase order unless exempted by rules, regulations or orders of the Secretary of Labor, issued pursuant to section 204 of Executive Order No. 11246 of September 24, 1965, as amended, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions including sanctions for noncompliance;

provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.

39.33 Vendor Notification – Ineligible for Award

The Commonwealth will not consider or evaluate any proposal submitted by a vendor when the vendor, the vendor’s employees or agents, had any involvement, Document Description Page 19 contribution or participation in the development, preparation or review of this RFP prior to its issuance. The vendors proposal will be deemed ineligible for award.

40.34 Past Vendor Performance

Past vendor performance may be considered in the award of this Contract. Vendors with a record of poor performance in the last twelve (12) months may be found non-responsible and ineligible for award.

40.35 Exception to Required Use of Contract

The establishment of this Master Agreement is not intended to preclude the use of similar products when requested by the agency. The Commonwealth of Kentucky reserves the right to contract for large requirements by using a separate solicitation.

40.36 Change of Circumstances

Each party shall promptly notify the other party of any legal impediment, change of circumstances, pending litigation, or any other event or condition that may adversely affect the party’s ability to carry out any of its obligations under this Contract.

40.37 Lobbying

(a) The Second Parties agree that they will not expend any funds appropriated by Congress to pay any person for influencing or attempting to influence an officer or employee of any agency, or a Member of Congress in connection with any of the following Federal actions: the awarding of any Federal contract; the making of any Federal grant; the making of any Federal loan; the entering into of any cooperative contract; and, the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative contract.

(b) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)—Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.

40.38 Drug-Free Work Place

(a) The Second Party agrees that it will comply with the provisions of the Drug-Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 et seq.) and maintain a drug-free workplace.

(b) The Final Rule, Government-Wide Requirements for Drug-Free Workplace (Grants), issued by the United States Office of Management and Budget is incorporated by reference and the Second Party covenants and agrees to comply

Document Description Page 20 with all the provision thereof, including any amendments to the Final Rule that may hereafter be issued.

40.39 Environmental Standards

(a) The Second Parties agree that their performance under this contract shall comply with: the requirements of Section 114 of the Clean Air Act (42 U.S.C.

7401-7671q) and Section 308 of the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), that relate generally to inspection, monitoring, entry reports and information, and with all regulations and guidelines issued thereunder;

the Resources Conservation and Recovery Act (RCRA); the Comprehensive Environmental Response, Compensation and Liabilities Act (CERCLA); the National Environmental Policy Act (NEPA); and any applicable Federal, State, or Local environmental regulation.

(b) The Second Parties shall insure that no facility used in their performance under this contract is listed on the Environmental Protection Agency (EPA) list of violating facilities pursuant to 40 CFR Part 15 without the concurrence of the First Party.

The Second Parties shall notify the First Party of the receipt of any communication from EPA indicating that a facility to be or being used in its performance under this Contract is under consideration for listing on the EPA list of violating facilities.

010.150 PREFERENCE FOR U.S. FLAG CARRIERS:

The Second Party agrees to comply with 46 U.S.C. 1241(b) and regulations issued thereunder (46 CFR Part 381) concerning the use of privately-owned United States flag commercial vessels.

40.40 Debarment and Suspension

(a) The Second Party shall not make any award or permit any award (subgrant or contract) at any tier to any party which is debarred or suspended or is otherwise excluded from or ineligible for participation in Federal assistance programs under Executive Order 12549 and 12689, “Debarment and Suspension”.

(b) The Final Rule, Government-Wide Debarment and Suspension (Non-procurement), issued by the United States Office of Management and Budget is incorporated by reference and the Second Party covenants and agrees to comply with all the provision thereof, including any amendments to the Final Rule that may hereafter be issued.

40.41 Hatch Act

The Second Party agrees to comply with the Hatch Act (5 U.S.C. 1501 –1508 and 7324 – 7328), as implemented by the United States Office of Personnel Management at 5 CFR Part 151, which limits political activity of employees or officer of State or local governments whose employment is connected to an activity financed in whole or part with Federal funds.

40.42 Buy American Act

The Second Party agrees that it will not expend any funds appropriated by Congress without complying with The Buy American Act (41 U.S.C. 10). The

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Buy American Act gives preference to domestic end products and domestic construction materials. In addition, the Memorandum of Understanding between the United States of America and the European Economic Community on Government Procurement, and the North American Free Trade Contract (NAFTA), provide the EC and NAFTA end products and construction materials are exempted from application of The Buy American Act.

40.43 Copeland “Anti-Kickback” Act

The Second Party agrees that it will comply with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145) as supplemented in United States Department of Labor (29 CFR Part 3). As applied to this contract, the Copeland “Anti-Kickback” Act makes it unlawful to induce, by force, intimidation, threat or procuring dismissal from employment, or otherwise, any person employed in the construction or repair of public buildings or public works, finance in whole or in part by the United States, to give up any part of the compensation to which that person is entitled under a contract of employment.

PURCHASING AND SPECIFICATIONS:

The Second Party certifies that he will not attempt in any manner to influence any specifications to be restrictive in any way or respect nor will he attempt in any way to influence any purchasing of services, commodities or equipment by the Commonwealth of Kentucky. For the purpose of this paragraph, “He” is construed to mean “They” if more than one person is involved and if a firm, partnership, corporation, or other organization is involved, then “He” is construed to mean any person with an interest therein.

40.44 Confidentiality

The Second Party agrees that any employee or agent acting in its behalf will abide by the state and federal rules and regulations governing access to and use of information provided to the second party by the First Party in the administration of this contract.

40.45 Audit Requirements And Required Monitoring

Subrecipient Audit Requirements If the Second Party is a governmental entity, an institution of higher learning, or other nonprofit institution, the Second Party shall procure an audit in accordance with the 2 CFR 200, Subpart F-Audit Requirements. The Second Party must ensure that any such required annual audit is performed within nine (9) months of closing of the Second Party’s fiscal year. The Second Party shall fully comply with the Federal Audit Clearinghouse (FAC) audit submission requirements set forth in 2 CFR 200.512. The First Party shall access the FAC to obtain the Second Party's audit reporting package and data collection form for review as soon as practicable after required submission. The First Party shall reserve the right to require the Second Party provide a copy of the audit in the event that the FAC submission is

Document Description Page 22 not accessible, or if the Second Party fails to comply with the requirements of 2

CFR 200.512.

Subrecipient Monitoring Required Risk Assessment 2 CFR §200.331(b) requires that the First Party evaluate each subrecipient's risk of noncompliance with Federal statutes, regulations, and the terms and conditions of the subaward for purposes of determining the appropriate subrecipient monitoring, which may include consideration of such factors as:

(a) The subrecipient's prior experience with the same or similar subawards;

(b) The results of previous audits including whether or not the subrecipient receives a Single Audit in accordance with Subpart F—Audit Requirements of this part, and the extent to which the same or similar subaward has been audited as a major program;

(c) Whether the subrecipient has new personnel or new or substantially changed systems; and

(d) The extent and results of Federal awarding agency monitoring (e.g., if the subrecipient also receives Federal awards directly from a Federal awarding agency).

Monitoring of Subrecipient 2 CFR §200.331(d) requires that the First Party, as the pass through entity, monitor the activities of the subrecipient as necessary to ensure that the subaward is used for authorized purposes, in compliance with Federal statutes, regulations, and the terms and conditions of the subaward; and that subaward performance goals are achieved. In accordance with 2 CFR §200.331(d) First Party monitoring of the subrecipient must include:

(a) Reviewing financial and performance reports required by the First Party.

(b) Following-up and ensuring that the subrecipient takes timely and appropriate action on all deficiencies pertaining to the Federal award provided to the subrecipient from the First Party detected through audits, on-site reviews, and other means.

(c) Issuing a management decision for audit findings pertaining to the Federal award provided to the subrecipient from the First Party as required by 2 CFR §200.521 Management decision.

Monitoring Tools Depending upon the First Party’s assessment of risk posed by the subrecipient (as described in Required Risk Assessment); monitoring tools may be utilized to ensure proper accountability and compliance with program requirements and achievement of performance goals. Monitoring tools include but are not limited to:

(a) Providing subrecipients with training and technical assistance on program-related matters; and

(b) Performing on-site reviews of the subrecipient's program operations;

(c) Arranging for agreed-upon-procedures engagements as described in 2 CFR §200.425 Audit services.

Imposition Of Specific Subaward Conditions

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2 CFR §200.331(c) requires that the First Party consider the imposition of specific subaward conditions upon a subrecipient as needed under the following circumstances stated in 2 CFR §200.207 (Specific Conditions):

(a) Based on criteria set forth in 2 CFR §200.205, Federal awarding agency review of risk posed by applicants;

(b) When an applicant or recipient has a history of failure to comply with the general or specific terms and conditions of a Federal award;

(c) When an applicant or recipient fails to meet expected performance goals as described in 2 CFR §200.210 Information contained in a Federal award; or

(d) When an applicant or recipient is not otherwise responsible.

These additional Federal award conditions may include items such as the following:

(a) Requiring payments as reimbursements rather than advance payments;

(b) Withholding authority to proceed to the next phase until receipt of evidence of acceptable performance within a given period of…