_Foreign_Language_Interpretation_and_Translation_Services__Attachment_05_Conformance_Statements.pdf

Request for Proposal

Solicitation No. BPM005633

Foreign Language Interpretation and Translation

Arizona Department of Administration

State Procurement Office

100 North 15th Avenue Phoenix, AZ 85007

Solicitation Attachment – Conformance Statements | Revision No. 1 | Revised 11-22

Attachment 05 – Conformance Statements

If taking exceptions, the relevant subsequent pages titled “Attachment Supplements” must be completed.

Attach additional pages as needed.

STATE WILL NOT CONSIDER ANY EXCEPTIONS UNLESS DESIGNATED ON THIS FORM.

READ ALL INSTRUCTIONS TO OFFERORS BEFORE TAKING ANY EXCEPTIONS. OFFERS WITH EXCEPTIONS MAY BE FOUND

NOT SUSCEPTIBLE FOR AWARD UNDER A.A.C. R2-7-C311 OR RECEIVE LOWER SCORES DURING EVALUATION.

IF NEITHER BOX IS CHECKED UNDER ANY SECTION BELOW, THE OFFEROR’S RESPONSE TO THAT SECTION WILL BE

CONSIDERED “YES” AND STATE WILL INTERPRET THE OFFER AS IF THERE WERE NO EXCEPTIONS TAKEN.

CONFORMANCE TO THE INSTRUCTIONS TO OFFERORS

Check one of the following:

☐ YES – Offeror acknowledges that it has read and understands the Special Instructions to Offerors and Uniform Instructions to Offerors of the Solicitation Documents and attests that its Offer complies with both.

X NO – Offeror acknowledges that it has read and understands the Instructions to Offerors in the Solicitation Documents, and attests that its Offer complies with both EXCEPT FOR the exceptions listed in Attachment Supplement – Conformance Statements - Exceptions to Instructions.

CONFORMANCE TO THE SCOPE OF WORK

X YES – Offeror acknowledges that it has read and understands the Scope of Work Document and the Pricing Document of the Solicitation Documents and attests that its Offer complies with both.

☐ NO – Offeror acknowledges that it has read and understands the Scope of Work Document and the Pricing Document of the Solicitation Documents and attests that its Offer complies with both EXCEPT FOR the exceptions listed in Attachment Supplement – Conformance Statements - Exceptions to Scope of Work.

CONFORMANCE TO THE CONTRACT TERMS AND CONDITIONS

☐ YES – Offeror acknowledges that it has read and understands the Special Terms and Conditions and the Uniform Terms and Conditions, along with their respective Exhibits and Appendices of the Solicitation Documents and attests that its Offer complies with all.

X NO – Offeror acknowledges that it has read and understands the Special Terms and Conditions and the Uniform Terms and Conditions, along with their respective Exhibits and Appendices of the Solicitation Documents and attests that its Offer complies with all EXCEPT FOR the exceptions listed in Attachment Supplement – Conformance Statements - Exceptions to Contract Terms and Conditions.

TransPerfect Remote Interpreting, Inc

State Procurement Office

Company name Signature of person authorized to sign

State Procurement Office

Attachment Supplement 05 – Conformance Statements - Exceptions to Instructions

Article / paragraph or exhibit reference

RFP language (Copy and paste from Solicitation) Alternate language and Rationale

Special Instructions to Offerors

Uniform Instructions to Offerors

X X Alternate language: X

Rationale: X

State Procurement Office

Attachment Supplement 05 – Conformance Statements - Exceptions to Scope of Work or exhibit reference

RFP language (Copy and paste from Solicitation) Alternate language and Rationale

Scope of Work

4.6.1 2. Shall be billed with a 300 word minimum. For billing purposes a word shall be defined as (5) characters in the requested language.

Alternate language: Shall be billed on final word count. For billing purchases a word shall be defined as

(1) one or more characters.

Rationale: Our contract with linguists require that we pay them per word. Our linguists will not accept projects if we redefine the meaning of a word.

TransPerfect Remote Interpreting, Inc.

State Procurement Office

Attachment Supplement 05 – Conformance Statements - Exceptions to

Contract Terms and Conditions or exhibit reference

RFP language (Copy and paste from Solicitation) Alternate language and Rationale

Special Terms and Conditions

3.7.2 Additional names. Contractor shall not enter into a

Subcontract to perform Work under the Contract, without first obtaining Procurement Officer’s written consent with any prospective Subcontractor that (a) was not listed on the Attachment Proposed

Subcontractors at time of Contract execution or (b) is for any Materials or Services categories other than the ones for which they were previously consented. For either case (a) or (b), Contractor shall submit a written request sufficiently in advance of the need date for those materials or services so that performance under the Contract is not impaired. Procurement Officer may request any additional information he or she determines is necessary to assess the submittal, and may withhold consent pending it. Approval of additional subcontractors shall be added to the

Contract by a bilateral Contract Amendment.

Alternate language: Additional names. Contractor shall not enter into a Subcontract to perform Work under the Contract, without first obtaining

Procurement Officer’s written consent with any prospective Subcontractor that (a) was not listed on the

Attachment Proposed Subcontractors at time of

Contract execution or (b) is for any Materials or

Services categories other than the ones for which they were previously consented. For either case (a) or (b), Contractor shall submit a written request sufficiently in advance of the need date for those materials or services so that performance under the Contract is not impaired. Procurement Officer may request any additional information he or she determines is necessary to assess the submittal, and may withhold consent pending it. Approval of additional subcontractors shall be added to the Contract by a bilateral Contract Amendment. For the avoidance of doubt, the Procurement Officer’s prior written consent shall not be required for Contractor’s use of subcontracted linguists in the ordinary course of its business.

Rationale: Because it is customary within the translations industry to use individual subcontracted linguists to perform translations, it is impractical for us to seek our client’s permission every time we receive a new translation request. Moreover, we cannot provide a list of subcontracted linguists ahead of time because we cannot anticipate which linguists we use on a given project because it will vary depending on: (i) language pair; (ii) subject matter; (iii) volume; (iv) deadlines;

and (v) general availability.

3.10.4 Contractor shall submit to State a quarterly usage

report documenting all Contract sales to both Eligible

Agencies and Co-Op Buyers, itemized separately.

Alternate language: Upon the State’s prior written request, Contractor shall submit to State a quarterly usage report documenting all Contract sales to both

Eligible Agencies and Co-Op Buyers, itemized separately.

State Procurement Office

Rationale: We’re happy to provide these reports upon request.

4.2 Contractor’s Best Pricing. Contractor warrants that, for

the term of the Contract, the prices and discounts set out in the APP Items (F) tab OR Attachments titled

Pricing, including any subsequent agreed amendment to it (the “Contract Pricing”), shall be equal to or better than the lowest prices and largest discounts, both separately and in combination, at which Contractor sells equivalent services, items of equipment, and materials. 4.2.1. That price-plus-discount equivalence

(“Contractor’s Best Pricing”) is intended to be irrespective of whether or not those other sales have special purchase terms, conditions, rebates, or allowances. 4.2.2. If Contractor’s Best Pricing for equivalent services, items of equipment, and materials is better than the Contract Pricing, then Contractor agrees to adjust the Contract Pricing to match the

Contractor’s Best Pricing for all sales related to the

Contractor made after the date when the Contractor’s

Best Pricing was first better than the Contract Pricing.

4.2.3. For clarification of intent, that date is intended

to be the date when the difference first occurred, which might have been before the difference was first identified. If the difference occurred before it was identified, then Supplier agrees to charge less than the

Contract Pricing until the extended difference that would have been realized (i.e. if the Contractor’s Best

Pricing had been applied when it should have been) has been settled

Alternate language: We’d like to delete this section.

Rationale: Per our policy, we do not agree to best pricing provisions. As a global company that has both commercial and public sector clients we have commercial clients that don't place restrictions on who we can use to perform work. Public Sector clients often restrict us to using resources based in the U.S.

Given this our commercial clients who don’t place such restrictions are eligible for more competitive pricing

4.4 No Price Increases. All prices and rates in Pricing

Attachment, or Orders if and to the extent they differ from those in the exhibit, will be valid for the entire term of the Contract, and will not be subject to revision for inflation or any changes to wages, taxes or other costs that Contractor may be obliged to incur that may be higher than those which it contemplated when proposing the relevant price or rate

Alternate language: As of the first anniversary of the date hereof, and on each anniversary thereafter, Contractor shall increase all fees covered by this

Agreement and any related Statement of Work by ten percent (10%).

Rationale: We’d like the ability to increase our fees in order to adjust for inflation.

4.5 Price Reductions. Price reductions shall be

immediately passed along to State and may be submitted in writing to State for consideration at any time during the Contract period. The contractor shall offer State a price reduction on the Contract product(s) concurrent with a published price reduction made to other customers. The State at its own discretion may accept a price reduction. The price reduction request shall be in writing and include documentation showing the actual reduction of cost. Sales promotions requests shall include differences in pricing, begin, and end

Alternate language: We’d like to delete this section.

Rationale: Per our policy, we do not agree to price reduction provisions.

State Procurement Office date of promotion along with the products covered

4.9.6 Any and all fees related to payment using a purchasing

card (also called a p-card) are the responsibility of the

Contractor.

Alternate language: Any and all fees related to payment using a purchasing card (also called a p-card) are the responsibility of the Applicable Eligible

Agency or the Co-Op Buyer (as applicable).

Rationale: In the event an Applicable Eligible Agency or Co-Op Buyer elects to pay invoices using a purchasing card, it’s reasonable for such agency or co-op buyer to be responsible for any associated fees.

5.1.2 Subject to Special Terms and Conditions sections 3.10

[Subcontracts] with respect to subcontracting, Contractor may assign particular rights or delegate particular duties under the Contract, but shall obtain

Procurement Officer’s written consent before doing so.

Alternate language: Subject to Special Terms and

Conditions sections 3.10 [Subcontracts] with respect to subcontracting, Contractor may assign particular rights or delegate particular duties under the Contract, but shall obtain Procurement Officer’s written consent before doing so. For the avoidance of doubt, the

Procurement Officer’s prior written consent shall not be required for Contractor’s use of subcontracted linguists in the ordinary course of its business.

linguists to perform translations, it is impractical for us to seek our client’s permission every time we receive a new translation request.

13.4 Off-Contract Services. Contractor shall ensure that the

ordering process for the Services prevents Orders for

Services not included in the scope of the Contract (and for which no price or compensation has been established in the Contract) or Services explicitly excluded from the Contract. Notwithstanding that

State might have its own internal administrative rules regarding off-contract or excluded ordering of

Services, and endeavors to prevent such Orders from occurring, Contractor is responsible for not accepting any such Orders. State may, at its discretion, cancel any such Order without obligation.

Alternate language: Off-Contract Services.

Contractor shall use its best efforts to ensure that the ordering process for the Services prevents Orders for

Services not included in the scope of the Contract (and for which no price or compensation has been established in the Contract) or Services explicitly excluded from the Contract. Notwithstanding that

State might have its own internal administrative rules regarding off-contract or excluded ordering of

Services, and endeavors to prevent such Orders from occurring, the State shall be responsible for paying all fees, expenses and other monies incurred up to and including the effective termination date, including for all Services and deliverables provided.

Rationale: We can agree to use our best efforts to ensure that the ordering process for the Services prevents Orders for Services not included in the scope of the Contract. However, in the event we are asked to provide services outside of the scope and we do so, we should still be compensated for any of the services/deliverables we provide.

State Procurement Office

14.2-

14.2.2

Data Protection and Confidentiality of Information.

Contractor warrants that it will establish and maintain procedures and controls acceptable to State for ensuring that State’s proprietary and sensitive data is protected from unauthorized access and information obtained from State or others in performance of its contractual duties is not mishandled, misused, or inappropriately released or disclosed. For purposes of this paragraph, all data created by Contractor in any way related to the Contract, provided to Contractor by

State, or prepared by others for State are proprietary to

State, and all information by those same avenues is

State’s confidential information. To comply with the foregoing warrant: 14.2.1. Contractor shall: (a) notify

State immediately of any unauthorized access or inappropriate disclosures, whether stemming from an external security breach, internal breach, system failure, or procedural lapse; (b) cooperate with State to identify the source or cause and respond to each unauthorized access or inappropriate disclosure; and

(c) notify State promptly of any security threat that could result in unauthorized access or inappropriate disclosures; and

14.2.2 Contractor shall not: (a) release any such data

or allow it to be released or divulge any such information to anyone other than its employees or officers as needed for each person’s individual performance of his or her duties under the Contract, unless State has agreed otherwise in advance and in writing; or (b) respond to any requests it receives from a third party for such data or information, and instead route all such requests to State’s designated representative

Alternate Language: Data Protection and

Confidentiality of Information. Each party warrants that it will establish and maintain procedures and controls acceptable to the other party for ensuring that party’s proprietary and sensitive data is protected from unauthorized access and information obtained from

State, Contractor, or others in performance of its contractual duties is not mishandled, misused, or inappropriately released or disclosed. For purposes of this paragraph, all data created by Contractor, exclusively for the State and in any way related to the

Contract, provided to Contractor by State, or prepared by others for State are proprietary to State, and all information by those same avenues is State’s confidential information. For purposes of this paragraph, any material, data or information

(including, without limitation, any information concerning Contractor’s pricing, technical data, trade secrets and know-how, research, product plans, products, technical requirements, software, programming techniques, algorithms, services, employee lists, contractor/vendor names and lists, inventions, processes, technology, business strategy, finances or other business information) provided by

Contractor to the State about the business of the

Contractor is confidential and proprietary, whether or not expressly designated as such (“Confidential

Information”).

To comply with the foregoing warrant: 14.2.1. the receiving party shall: (a) notify the disclosing party immediately of any unauthorized access or inappropriate disclosures, whether stemming from an external security breach, internal breach, system failure, or procedural lapse; (b) cooperate with the disclosing party to identify the source or cause and respond to each unauthorized access or inappropriate disclosure; and (c) notify the disclosing party promptly of any security threat that could result in unauthorized access or inappropriate disclosures; and

14.2.2. Neither party shall: (a) release any such data or

allow it to be released or divulge any such information to anyone other than its employees or officers as needed for each person’s individual performance of his or her duties under the Contract, unless the disclosing party has agreed otherwise in advance and in writing;

or (b) respond to any requests it receives from a third party for such data or information, and instead route all such requests to the disclosing party’s designated representative. Each party shall be liable for any breach of this Agreement by any of its authorized

State Procurement Office employees or officers.

Rationale: We would like to have mutual confidentiality in place. We would also like to make clear that both parties shall be liable for the acts/omissions of its respective employees/officers.

15.6.2 If State does cancel the Order or terminate the

Contract, Contractor shall refund to State:

15.6.2.1. for any software created for State under the

Contract, the amount State paid to Contractor for creating it;

15.6.2.2. for all other Materials, the net book value of the product provided according to generally accepted accounting principles; and

15.6.2.3. for Services, the amount paid by State or an amount equal to twelve (12) months of charges, whichever is less.

Alternate language: If State does cancel the Order or terminate the Contract, Contractor shall refund to State for any software created for State under the Contract, the amount State paid to Contractor for creating it.

Rationale: If none of the options in 15.6.1 can be accomplished and the State cancels the Order of terminates the Contract, it’s reasonable for

TransPerfect to reimburse the State for any infringing software created for the State. However, the State should still be responsible for any deliverables and/or services that have been accepted by the State.

15.7.2 This paragraph limits liability for first party direct, indirect, incidental, special, punitive, and consequential damages relating to the Work regardless of the legal theory under which the liability is asserted.

Alternative Language: In no event shall either party be liable to the other for any indirect, incidental, special, punitive, or consequential damages.

Rationale: We’d like to make clear that neither party shall be liable for the abovementioned damages.

15.7.2.3 provision of the Contract calling for liquidated damages or specifying amounts or percentages as being at-risk or subject to deduction for performance deficiencies

Alternative language: We’d like to delete this section.

Rationale: This isn’t a customary carve out that we normally agree to.

3.3 The State reserves the right to conduct risk

assessments, vulnerability assessments, black-box penetration tests or hire a third party to conduct risk assessments, vulnerability assessments, and black-box penetration tests of the Contractor’s environment.

Contractor will be alerted in advance and arrangements made for an agreeable time. Contractor shall respond to all flaws deemed serious by the State when discovered by providing an acceptable timeframe to resolve the issue and/or implement a compensating control(s).

Alternative language: No less than annually, Contractor shall conduct an independent third-party audit of its privacy and security systems and shall provide such audit findings to the State and shall implement any required safeguards as identified by such audits, provided, however, that in the event of a security incident, the State or another auditor mandated by the State will be allowed to audit, including inspect, upon reasonable prior notice and

Contractor’s personnel are required to cooperate thereupon.

Rationale: We already conduct our own independent third party audit and we are happy to provide the audit findings to the State.

State Procurement Office

Uniform Terms and Conditions

5.2 The Contractor shall not enter into any Subcontract

under this Contract for the performance of this

Contract without the advance written approval of the

Procurement Officer as described in Arizona State

Procurement Office Standard Procedure 002. The

Contractor shall clearly list any proposed

Subcontractors and the Subcontractor’s proposed responsibilities, Alternate language: The Contractor shall not enter into any Subcontract under this Contract for the performance of this Contract without the advance written approval of the Procurement Officer as described in Arizona State Procurement Office

Standard Procedure 002. The Contractor shall clearly list any proposed Subcontractors and the

Subcontractor’s proposed responsibilities. For the avoidance of doubt, the Procurement Officer’s prior written consent shall not be required for Contractor’s use of subcontracted linguists in the ordinary course of its business.

linguists to perform translations, it is impractical for us to seek our client’s permission every time we receive a new translation request. Moreover, we cannot provide a list of subcontracted linguists ahead of time because we cannot anticipate which linguists we use on a given project because it will vary depending on: (i) language pair; (ii) subject matter; (iii) volume; (iv) deadlines;

and (v) general availability.

7.2.2 Fit for the intended purposes for which the Materials

are used

Alternate language: We’d like to delete this provision.

Rationale: We won’t know the intended purpose for which the Materials will be used. As such, we cannot make this warranty.

7.3.1.4 Be fit for the intended purpose or use described in the

Contract

Alternate language: We’d like to delete this provision.

Rationale: We won’t know the intended purpose for which the Services will be used. As such, we cannot make this warranty.

9.5.1 In addition to the rights reserved in the contract, the

State may terminate the Contract in whole or in part due to the failure of the Contractor to comply with any term or condition of the Contract, to acquire and maintain all required insurance policies, bonds, licenses and permits, or to make satisfactory progress in performing the Contract. The Procurement Officer shall provide written notice of the termination and the

Alternate language: In addition to the rights reserved in the contract, each party may terminate the Contract in whole or in part due to the failure of the other party to comply with any term or condition of the Contract, to acquire and maintain all required insurance policies, bonds, licenses and permits, or to make satisfactory progress in performing the Contract. The terminating party shall provide written notice of the termination

State Procurement Office reasons for it to the Contractor and the reasons for it to the other party.

Rationale: We’d like the ability to terminate the

Contract in the event the State breaches its obligations.

Exhibit A, Section

1.3 (a) and (b)

a. The policy shall include coverage for Sexual Abuse and Molestation (SAM). This coverage may be sub-limited to no less than $500,000. The limits may be included within the General Liability limit or provided by separate endorsement with its own limits. If you are unable to obtain SAM coverage under your General

Liability because the insurance market will not support it, it should it be included with the Professional

Liability. b. Contractor must provide the following statement on their Certificate(s) of Insurance: “Sexual

Abuse and Molestation coverage is included” or

“Sexual Abuse and Molestation coverage is not excluded.”

Alternate language: We’d like to remove this section.

Rationale: We do not have Sexual Abuse and

Molestation (SAM) coverage. If this clause is not removed we will not be able to provide onsite interpretation services to the State. The cost of this insurance is onerous roughly $50k annually, with no guarantee of work this is cost prohibitive.

2.2

Security

Frame

Work

The State has established a process to assess risk associated with storing, processing and/or transmitting State of

Arizona data with external, non-State of

Arizona, entities. The Arizona Risk and

Authorization Management Program

(AZRamp) was developed to ensure State and contractors meet these requirements.

All contractors responding to State solicitations must successfully complete the AZRamp risk assessment based upon the data classification involved as determined by the data owner and

Arizona Strategic Enterprise Technology

(ASET) Department. Failure to successfully complete AZRamp assessment will be deemed as breach of contract.

Alternate language: All contractors responding to State solicitations must successfully complete the AZRamp risk assessment based upon the data classification involved as determined by the data owner and Arizona Strategic Enterprise Technology (ASET) Department. Failure to successfully complete AZRamp assessment will be deemed as breach of contract. A contractor has the right to refuse work, if that work would require the contractor to incur costs to achieve the necessary security standard.

Rationale : Being awarded a contract does not guarantee that a contractor will get utilized by the

State. As such the contractor should not have to achieve a security standard without understanding the cost of achieving that standard and the amount of work it will be awarded if/when achieving that standard.

TransPerfect Remote Interpreting, Inc.

State Procurement Office