IFB SRC000404.docx

STATE OF NORTH DAKOTA

INVITATION FOR BID (IFB)

(July 2025)

PROCUREMENT OFFICER

The Procurement Officer is the point of contact for this IFB. Bidders shall direct all communications regarding this IFB to the Procurement Officer. Please do not add the Procurement Officer to any marketing distribution lists.

PURCHASING AGENCY (STATE): Life Skills & Transition Center PROCUREMENT OFFICER: Phaden Marcellais EMAIL: pmarcellais@nd.gov

PHONE: 701-328-1379

TTY Users call: 7-1-1

Engaging in unauthorized communication or seeking to obtain information about an open solicitation with any state employee or official other than the responsible Procurement Officer or designee is sufficient grounds for suspension or debarment. [N.D.A.C. § 4-12-05-04(7)].

BID QUESTION DEADLINE

Bidders should carefully review the IFB, including all attachments. Bidders may ask questions to obtain clarification, request additional information, or object to material in the IFB. Questions and objections must be submitted to the Procurement Officer, in writing, by the Bid Question Deadline identified in the IFB.

1) Bidders may submit questions within NDBuys using the “Discussions Tab” in the system (see the OMB website for a quick reference guide); or

2) Bidders may email the question directly to the Procurement Officer.

The Procurement Officer may elect to respond to questions received after the Bid Question Deadline.

Responses to questions will be distributed as a Solicitation Amendment, unless the question can be answered by referring the bidder to a specific section of the IFB.

If an amendment (i.e., a new round) is issued to this IFB, it will be provided to all bidders on the Bidders List for this IFB and to those prospective bidders who have contacted the Procurement Officer to receive notices related to this IFB. All amendments to this IFB will be issued in NDBuys and a Bidder shall include in its Bid Response any required acknowledgements of amendments to this IFB. If a Bidder has already submitted a response beforehand, Bidders are required to resubmit their Bid Response or submit a new Bid Response to remain under consideration.

A person or firm interested in submitting a response should ensure all communications related to the procurement are only with the designated point of contact. This section does not restrict communication with state officials or any member of the legislative assembly unless the state official or member of the legislative assembly is involved directly with the procurement for which the person is interested or has submitted a bid or proposal (N.D.C.C. § 54-44.4-01.1).

NDBUYS STATE PROCUREMENT WEBSITE

This IFB and any related amendment and notices will be posted on the North Dakota NDBuys State Procurement System. Bidders are responsible for checking the NDBuys system to obtain all information and documents related to this IFB: https://public.ndbuys.nd.gov/.

Notices related to this IFB will be sent to the Bidders List for the needed commodity or service and other known potential bidders.

Bidders that are registered for the Bidders List and would like to receive notices related to this IFB, locate the solicitation in NDBuys and select the “Participate in RFx” button. If you do not see the “Participate in RFx” button, contact the Procurement Officer to confirm you are already included in the list of bidders to receive notices for the IFB.

Bidders that have not yet registered for the Bidders List and would like to receive notices related to this IFB, must complete the Bidders List registration. See NDBuys Quick Reference Guides at https://www.omb.nd.gov/doing-business-state/bidders/bidding-opportunities-and-resources for how to register.

SECTION 1

BIDDERS INSTRUCTIONS

1. Bidder Checklist. Have you remembered to?

a. Ensure your Bid Response complies with all instructions, terms and conditions, delivery requirements, and specifications.

b. Prepare your price in the specified unit of measure, FOB: Destination to the shipping location.

c. Sign your bid and initial any changes or corrections.

d. Ensure your Bid Response is received by the Procurement Officer by the Bid Response Deadline. Call to confirm receipt.

e. If using a delivery service, check tracking to ensure the Bid Response will be delivered on time. Contact the Procurement Officer as soon as possible in the event of delays due to weather, etc.

f. Submit any required samples or documents.

2. Definitions.

a. Bidder: any person or firm submitting a competitive bid in response to a solicitation.

b. Bid Response: the executed document submitted by a Bidder in response to a solicitation.

c. Commodities: all property, including equipment, supplies, materials, printing, insurance, and the lease of equipment.

d. Contractor: any person or firm having a contract with a governmental body.

e. Procurement Officer: an individual duly authorized to enter into and administer purchasing contracts and make written determinations with respect thereto; also includes an authorized representative acting with the limits of designated purchasing authority.

f. Purchasing Agency (STATE): the entity on which the purchase is being made on behalf of.

g. Services: the furnishing of labor, time, or effort by a Contractor, not involving the delivery of a specific end product other than reports that are merely incidental to the required performance.

h. Solicitation: a document to notify prospective Bidders of a bidding opportunity.

i. N.D.A.C.: North Dakota Administrative Code; rules with the force and effect of law.

j. N.D.C.C.: North Dakota Century Code; state laws.

k. OMB: Office of Management and Budget (OMB); a North Dakota state agency.

l. SPO: State Procurement Office, a division of the Office of Management and Budget.

m. NDBuys: a procurement information website maintained by the State Procurement Office pursuant to N.D.C.C. § 54-44.4-14.

3. Secretary of State Registration Requirements. The North Dakota Secretary of State has registration requirements for individuals and businesses transacting business in North Dakota. If the successful Bidder is determined to have a registration requirement with the North Dakota Secretary of State, they must be registered before the contract award and registration must remain active for the duration of the contract period (N.D.C.C. § 54-44.4-09.1).

See the OMB Guidelines to Vendor Registry for more information.

Visit the Secretary of State's Vendor Registration webpage for information on registration requirements and fees. Visit FirstStop, the Secretary of State's business and licensing software, for online form options.

a. Check the Business Records database to see if a business is registered.

b. Contact Secretary of State's office by email or call 701-328-2900 (choose menu item 2, then option 1).

c. If you need to register, fees apply.

d. Vendors may need to obtain businesses licenses. See the list of licenses required of businesses in the State of North Dakota. The link includes information on who to contact, application fees, renewal dates, and the legal reference.

4. Bidders List. Individuals or business entities desiring to be notified of bidding opportunities may apply to be placed on the Bidders List (N.D.C.C. § 54-44.4-09). Bidders Lists are used to notify vendors when solicitations are issued on the State’s procurement information system (NDBuys). Placement on the Bidders List does not guarantee a vendor will receive notice of every solicitation (N.D.A.C. § 4-12-05-01). There are no fees to register as a bidder.

Bidders applying for the Bidders List must provide contact information for receiving solicitation notices, Tax ID, address and phone information. Bidders must also select the commodity codes to identify categories of goods, services, and information technology.

The commodity codes used for this solicitation are: 15 - 17553, 19336 and 17 - 46501, 46507, 46517, 46525, 49309

Visit the OMB website for instructions: Bidders List Registration Website.

For assistance with Bidders List Registration, contact State Procurement Help Desk at 701-328-2740 or ndbuys@nd.gov.

5. Submission Instructions. Please follow these instructions to submit your Bid Response. Bid Responses must be received by the Procurement Officer by the Bid Response Deadline. Bidders assume the risk of the delivery method selected. Late Bid Responses will be rejected.

Bidders must electronically submit Bid Responses through the State’s procurement information system (NDBuys) by the Bid Response Deadline for Receipt of Proposals https://public.ndbuys.nd.gov/.

DO NOT WAIT UNTIL THE “LAST MINUTE” TO SUBMIT A RESPONSE. It is recommended that Bid Responses be uploaded 24 hours prior to the Bid Response Deadline.

Bidder must begin the electronic submission process well in advance of the Bid Response Deadline to allow for transmission and resolution of any technical difficulties. Be advised that the STATE is not responsible for a Bidder’s failure to timely submit a Bid Response due to any technical difficulties. If you experience any technical difficulties contact, the Procurement Officer or the State Procurement Office at ndbuys@nd.gov or 701-328-2740.

If documents are in the process of being uploaded when the Bid Response Deadline occurs, the upload process will stop. The attempted submission will not be uploaded successfully and is ineligible for consideration. The STATE takes no responsibility for electronic submissions that are captured, blocked, filtered, quarantined, or otherwise prevented from uploading by any anti-virus or other security software.

To participate in the solicitation, Bidder must register as a supplier within NDBuys. Bidder must log into their NDBuys account using a North Dakota Login (ND Login) and complete the supplier registration to submit a response to the solicitation. Bidder will not be able to respond to a solicitation without registering first.

Visit https://www.omb.nd.gov/doing-business-state/bidders/bidding-opportunities-and-resources for the NDBuys Quick Reference Guides which describe how to submit an electronic response.

Bidder must upload their Bid Response. The maximum file size allowed in 56mb or 56,120 KB per file.

DO NOT submit documents that are embedded (zip files), movies, wmp, encrypted, or mp3 files.

Bidder will be able to confirm that a response has been submitted by reviewing the History tab of the solicitation and confirming that Bid Response status is submitted. If Bidder DOES NOT see that it has been submitted, the upload was NOT successful. Contact the Procurement Officer or the State Procurement Office at ndbuys@nd.gov or 701-328-2740.

6. Additional Terms and Conditions. Additional terms and conditions submitted with a Bid Response are of no effect unless accepted, in writing, by the Procurement Officer. Bid Responses with additional terms and conditions may be rejected as non-responsive (N.D.A.C. § 4-12-11-06).

7. Assistance to Bidders with a Disability. Bidders with a disability that need an accommodation must contact the Procurement Officer prior to the Bid Response Deadline so reasonable accommodation can be made.

8. Bid Response Held Firm. Bid Responses are not awarded at the bid opening. Bidders must hold their Bid Responses firm for 30 days, unless otherwise specified by the Procurement Officer, in writing.

9. Bid Response Opening. All Bid Responses received by the Bid Response Deadline will not be publicly opened by the Procurement Officer.

10. Bid Response Results. Interested parties may contact the Procurement Officer to obtain a summary of all Bid Responses received and the award. Bid results summary may be requested from the Procurement Officer.

11. Bidders List - Suspension and Debarment. Placement on the Bidders List does not guarantee a vendor will receive notice of every solicitation. A vendor may be removed from the Bidders List if a solicitation notice is undeliverable. Vendors may be suspended or debarred from the Bidders List for cause (N.D.A.C. ch. 4-12-05).

12. Changes/Corrections. Bidders must initial any changes or corrections to the Bid Response, such as erasures and crossed out/rewritten prices. The Procurement Officer may confirm the Bid Response when changes are not initialed.

13. Multiple Bid Responses. Bidders may submit more than one Bid Response in response to this solicitation. Each Bid Response submitted must be prepared in accordance with the Bid Response instructions and meet the stated requirements.

14. Open Records Requests. Bid Responses are exempt records until the date and time of the Bid Response opening. After the Bid Response opening, all Bid Responses are subject to North Dakota open records laws. Interested parties may contact the Procurement Officer to request information related to this solicitation.

15. Packaging. All packaging must be strong and secure in accordance with accepted commercial practices.

16. Protests. Protests of the solicitation must be received by the Procurement Officer within seven days before the Bid Response Deadline. Protests of the award or Notice of Intent to Award must be received by the Procurement Officer within seven days after receiving notice of award. Seven calendar days after award or issuance of the Notice of Intent to Award it will be assumed that all interested parties knew or should have known all the facts surrounding the award. Protests must be made, in writing, to the Procurement Officer and include the basis for the protest (N.D.C.C. § 54-44.4-12; N.D.A.C. ch. 4-12-14).

17. Signature. The Bidder’s authorized representative must provide their printed name, title, and sign the Bid Response. The lack of a signature may be waived as a minor informality, provided a signed Bid Response is submitted by the deadline established by the Procurement Officer (N.D.A.C. ch. 4-12-10).

18. Specifications, Compliance. All Bid Responses must comply with the stated specifications, and the successful Bidder will be held responsible. Bidders who desire to submit commodities or services that deviate from these specifications or have any objections to the stated specifications must contact the Procurement Officer by the Bid Question Deadline or at least seven days before the Bid Response Deadline, so the Procurement Officer can determine whether the specifications need to be amended.

19. Specifications Prepared by Non-State Personnel. When a purchasing agency has specifications prepared by someone other than a state employee or official on behalf of the state, that person or business entity must be excluded from submitting bids or proposals in accordance with N.D.A.C. § 4-12-06-06.

20. Supplier Registration (Payee). The successful Bidder will be required to complete Supplier Registration, if not already registered as a Supplier. Any individual or business who will be receiving payment from a state agency or higher education institution must complete a registration process to collect important financial and taxpayer information. Payments are generally made by check or automatic clearing house (ACH), and taxpayer information must be collected in compliance with IRS requirements. The State and North Dakota University System (NDUS) have separate financial systems and vendor registration processes.

21. Withdrawal or changes to a Bid Response prior to the Bid Response Deadline. Before the Bid Response Deadline, the Bidder’s authorized representative may withdraw or change a Bid Response by making a written request to the Procurement Officer.

22. Withdrawals or changes to a Bid Response after the Bid Response Deadline. After the Bid Response Deadline, no changes may be made to the Bid Response, except as provided in N.D.A.C. ch. 4-12-10. The Bidder’s authorized representative may make a written request to withdraw the Bid Response.

SECTION 2

EVALUATION AND AWARD

1. Award. Award will be made to the responsible Bidder with the lowest priced Bid Response that is responsive to the specifications and all other requirements stated herein. Award will be made as follows:

· All or none.

2. Award – Preference Laws. The reciprocal preference law, N.D.C.C.§ 44-08-01, was repealed effective August 1, 2023.

3. Award – Tie Bid Response Preference. If a tie occurs between two or more Bidders with equal Bid Response prices or Bidders with identical evaluation scores:

a. Preference must be given to a resident North Dakota Bidder, seller, vendor, offeror, or contractor as defined in N.D.C.C. § 44-08-02. (N.D.C.C. 54-44.4-05.1)

b. If a tie still remains, award shall be made in accordance with N.D.A.C. § 4-12-11-05.

4. Late Bid Responses. Bid Response responses must be received by the Procurement Officer by the Bid Response Deadline. Late Bid Responses will be rejected, regardless of the degree of lateness, unless the delay is due to the error of the Procurement Officer and discovered before the selection of the successful Bidder (N.D.A.C. § 4-12-08-13).

5. Responsiveness of the Bid Response. Any Bid Response that does not meet the requirements of the solicitation, other than mistakes determined to be minor informalities, will be rejected (N.D.A.C. § 4-12-11-03).

6. Minor Informalities. The STATE reserves the right to waive minor informalities in Bid Responses. Minor informalities are insignificant omissions or nonjudgmental mistakes that are matters of form rather than substance, evident from the Bid Response document, with a negligible effect on price, quantity, quality, delivery, or contractual conditions that can be waived or corrected without prejudice to other Bidders (N.D.A.C. ch. 4-12-10).

7. Mistakes. The Procurement Officer may confirm the Bid Response in the event of apparent errors, such as an unreasonably priced Bid Response. Mistakes will be handled in accordance with N.D.A.C. ch. 4-12-10.

8. Responsibility of the Bidder. The Procurement Officer, at any time, may make a supplementary investigation as to the responsibility of any Bidder, even though the Bidder may be on the Bidders List. If a Bidder is determined to be not responsible, that Bid Response will be rejected even if it is the lowest Bid Response, and the Bidder may be debarred or suspended from the Bidders List (N.D.A.C. § 4-12-11-04).

9. Rejection. The STATE reserves the right to reject any and all Bid Responses in whole or in part. The Procurement Officer will send a rejection notice, including the reason for rejection. Bid Responses will be rejected if:

a. the Bid Response is determined to be not responsive to the instructions, specifications, and other requirements of the solicitation, other than mistakes or omissions determined to be minor informalities;

b. the Bid Response is determined to be late;

c. the Bidder fails to comply with Bidders List Application requirements by the stated deadline;

d. the Bidder is determined to be not responsible, in accordance with N.D.A.C. § 4-12-11-04;

e. the Bid Response is not legible.

If all Bid Responses are rejected, the Procurement Officer will send written notice to Bidders, including the reason all Bid Responses were rejected (N.D.A.C. § 4-12-11-09).

10. Third-Party Security Questionnaire.

The Third-Party Risk Management (TPRM) program helps to classify, evaluate, and monitor all third-party Vendors to provide reasonable assurance that inherent and overall risk associated with each third-party Vendor relationship is understood and aligned to the overall security objectives at the STATE.

The STATE will accept certification of the Bidder’s solution (not the third party hosting environment) via FedRAMP, HITRUST, or StateRAMP in lieu of completing the Third-Party Security Questionnaire (TPSQ). The STATE may have questions for these certified Offerors.

If the Bidder with the lowest price meeting specification does not hold a certification listed above, they will be required to complete the TPSQ. The TPSQ is a series of questions, filled out by the Bidder and any related personnel. The TPSQ assesses the Bidder security controls to determine if they are sufficient or pose any risk to the STATE.

After review of the Bidder TPSQ response, the Procurement Officer will be notified of all risks identified during the review of the security survey.

Bidders may be given the opportunity to remediate identified risks. Any costs associated with the remediation is the Bidder’s responsibility and price adjustments are not allowed.

If a Bidder will not or cannot remediate identified risks, the Agency Head or Designee may choose to accept ownership of the risk.

After award, the results of the TPSQ will be made available to the Bidder upon request and are otherwise a confidential document.

SECTION 3

SPECIAL TERMS AND CONDITIONS

1. Term of the Contract. The term of the contract issued as a result of this solicitation will be as follows:

a. Contract Period. This Contract term (Term) begins on its effective date and ends on June 30, 2027.

NOTE- depending on the bidder and product being offered, if the bidder is the manufacturer and contract is needed to keep the 5-year warranty active, contract period end date will be changed to align with that date.

b. No Automatic Renewal. This Contract will not automatically renew.

2. Billing Address. After delivery of commodities or services under contract, the CONTRACTOR must submit a correct invoice. Payment will be made after inspection and acceptance.

· An SFN 1763 must be submitted to the Purchasing Agency in order to receive payment. All payment inquiries must be directed to the Purchasing Agency.

3. Contract Amendment – Unanticipated Amendment. After a binding contract has been entered into, no changes may be made, unless prior written approval has been obtained from the Purchasing Agency through execution of a contract amendment. The CONTRACTOR may request changes, such as substitutions of a product, by submitting a written request to the Procurement Officer. Unanticipated amendments must be within the scope of the original contract, authorized by the terms of the contract and due to legitimate, unforeseen circumstances (N.D.A.C. ch. 4-12-13).

4. Invoicing.

All invoices and payment inquiries must be directed to the Purchasing Agency.

5. Pricing – Tax Exempt. All prices must be in United States currency. Bid Response prices must include all discounts and deductions, and to be less federal and state taxes. Bidders may contact the Procurement Officer to obtain the Purchasing Agency’s tax exemption number and tax-exempt certificate.

6. Price Adjustment. Pricing during the term of the contract will be as follows:

· Firm-Fixed. Pricing shall be firm for the period of the contract.

7. Pricing, Unit of Measure. The unit prices are to be according to the unit of measurement specified in the solicitation. In the event of mathematical differences between the unit price and extended total, the unit price will prevail (N.D.A.C. § 4-12-10-02).

8. Travel. CONTRACTOR acknowledges any travel costs are covered by the Contractual Amount and shall not invoice STATE for travel costs.

9. Delivery Time Required. Delivery within 60 days after contractor receives signed contract, with written notice required if delivery will be delayed.

10. Delivery Location / Free Onboarding. Destination to LSTC, all freight included in item price.

11. Descriptive Literature. Bidders must include manufacturer specs with their response.

12. New Equipment. All equipment shall be new and under current production

13. Inspection and Acceptance. STATE reserves right to inspect and reject non-compliant equipment

14. Training. Provided virtually by Bidder or manufacturer at no cost to STATE on a mutually agreed upon date

SECTION 4

CONTRACT TERMS AND CONDITIONS EXCEPTIONS

Purchasing Agency will consider exceptions to the Contract Terms and Conditions found in Section 6. However, Bidders must propose changes or additions to Section 6 within their Bid Response by red-lining Section 6. Bidders are not to submit their own contract or standard terms and conditions with their Bid Response. Bidders shall address the specific language within Section 6 and submit any proposed changes.

If the model being proposed will not connect to the internet, the IT clauses listed in Section 2 (Item 10) and Section 6 (Items 10, 11, 12, and 15) may not apply.

SECTION 5

BID RESPONSE FORM

SPECIFICATIONS

The Purchasing Agency (Life Skills and Transition Center) is soliciting bids for a new chemistry analyzer. The specifications for the chemistry analyzer are listed below.

Specifications for Chemistry Analyzer:

A. Analyzer Type – Single Benchtop B. Chemiluminescent Immunoassay (CLIA) Waived C. Dimensions: Width (5”-10”), Depth (7”-12”), Height (11”-15”) D. Use must be compatible with reagent disc E. Number of tests: Minimum 6 tests, Maximum 31 tests F. Readout Type: USB Data Transfer, Printout G. The analyzer must have the ability to interface with Orchard Information System.

H. Quality Control (QC) Alerts I. Sample Capacity: Minimum 100uL J. Sample Types must include one of the following: Whole Blood, Serum, Plasma K. Time to Results: Minimum 12 minutes L. Touch screen operation M. Weight: Range 11-15 pounds N. Piccolo Xpress Chemistry Analyzer or Equivalent, Model Number: 07P05-50

The successful Bidder, at a minimum, must include the following:

A. 5-year manufacturer warranty beginning upon confirmed receipt of delivery.

B. Online and phone technical support shall be available during the State’s regular business hours, or the bidder shall have the ability to respond to support inquiries within one business day.

Bidder may provide optional service and maintenance.

Delivery Address: Life Skills & Transition Center, 701 W 6th Street, Grafton, ND 58237

Delivery Date Time Required: Within 60 days after CONTRACTOR receives a signed Contract.

Billing Address: Same as Delivery Address as specified in the Order

Chemistry Analyzer, new not reconditioned, Piccolo Xpress Chemistry Analyzer or Equivalent

TOTAL PRICE

Bidder Prompt Payment Discount, if applicable:

(Discounts not considered in evaluating prices.)

AFFIRMATION OF SPECIFICATIONS

BIDDER’S CONTACT INFORMATION

Service Provider: The CONTRACTOR must provide a dedicated service provider to support for this contract. During the contract term, the CONTRACTOR shall notify the Procurement Officer if CONTRACTOR’s service provider changes.

Service Provider Name:

Address:

City & State & ZIP

Phone Number:

Cell Phone Number:

Toll Free Number:

E-Mail Address:

BIDDER INFORMATION AND SIGNATURE

By submitting a Bid Response, the Bidder agrees to sell, furnish, and deliver to the STATE all commodities and services contained in this Invitation for Bid for which a contract is awarded by the STATE. The Bidder shall fully perform the contract in accordance with all the specifications, requirements, terms, and conditions, and shall comply with all applicable provisions of the North Dakota Century Code, including chapters 54-44.4, 46-02, and 44-08, and North Dakota Administrative Code Chapter 4-12, made part of the Invitation for Bid and resultant contract by reference.

Written acceptance of the Bid Response by the STATE constitutes a binding contract made and entered into by and between the State of North Dakota, acting through the Purchasing Agency, and the Bidder named below. Written acceptance may be made by execution of a contract, purchase order, or order using a state purchasing card.

NOTICE. All notices or other communications required under this Contract must be given by registered or certified mail and are complete on the date postmarked when addressed to the parties identified herein. Notice provided under this provision does not meet the notice requirements for monetary claims against the STATE found at N.D.C.C. § 32‑12.2‑04.

Bidder/Contractor Name:

Contractor Federal Employer Identification Number (FEIN)

Bidder Street Address/ P.O. Box:

City, State ZIP:

Contact Name:

Contact Title:

Telephone Number:

Email:

Authorized Representative Signature:

Date:

STATE OF NORTH DAKOTA

BID ACCEPTANCE AND CONTRACT AWARD

The parties to this contract (Contract) are the state of North Dakota, acting through the Purchasing Agency (STATE), and the above-named Bidder (CONTRACTOR). This Contract is not effective until fully executed by both parties. If no start date is specified in the Term of Contract, the most recent date of signatures of the parties shall be deemed the Effective Date.

NOTICE. All notices or other communications required under this Contract must be given by registered or certified mail and are complete on the date postmarked when addressed to the parties identified herein. Notice provided under this provision does not meet the notice requirements for monetary claims against the STATE found at N.D.C.C. § 32‑12.2‑04.

Acting through its Purchasing Agency:

BY: (Signature)

Printed Name:

Title:

Date:

SECTION 6

CONTRACT TERMS AND CONDITIONS

1. Scope of Work. CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide the services described in this solicitation.

2. Compensation.

Contractual Amount STATE shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed the amount indicated on the Bid Response form (Contractual Amount). The Contractual Amount is firm for the duration of the Contract and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Contract, unless amended, regardless of the difficulty, materials, or equipment required, including fees, licenses, overhead, profit, and all other direct and indirect costs incurred by CONTRACTOR, except as provided by an amendment to this Contract.

Payment

1) Payment made in accordance with this Compensation section shall constitute payment in full for the services and work performed and the deliverables and work(s) provided under this Contract and CONTRACTOR shall not receive any additional compensation hereunder.

2) STATE shall make payment under this Contract within forty-five (45) calendar days after receipt of a correct invoice.

3) Payment of an invoice by STATE will not prejudice STATE’s right to object to or question that or any other invoice or matter in relation thereto. CONTRACTOR's invoice will be subject to reduction for amounts included in any invoice or payment made which are determined by STATE, on the basis of audits conducted in accordance with the terms of this Contract, not to constitute allowable costs. At STATE’s sole discretion, all payments shall be subject to reduction for amounts equal to prior overpayments to CONTRACTOR.

4) For any amounts that are or will become due and payable to STATE by CONTRACTOR, STATE reserves the right to deduct the amount owed from payments that are or will become due and payable to CONTRACTOR under this Contract.

3. Prepayment. STATE will not make any advance payments before performance by CONTRACTOR under this Contract.

4. Payment of Taxes by State. STATE is not responsible for and will not pay local, state, or federal taxes. STATE will furnish certificates of exemption upon request by the CONTRACTOR.

5. Purchasing Card. STATE may make a payment using a government credit card. CONTRACTOR will accept a government credit card without passing the processing fees for the government credit card back to STATE.

6. Termination.

a. Termination for Convenience or by Mutual Agreement This Contract may be terminated by STATE upon thirty (30) days’ written notice to CONTRACTOR. This Contract may be terminated by mutual consent of both parties executed in writing.

b. Early Termination in the Public Interest STATE is entering into this Contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly, Agencies and Courts. If this Contract ceases to further the public policy of the State of North Dakota, STATE, in its sole discretion, by written notice to CONTRACTOR, may terminate this Contract in whole or in part.

c. Termination for Lack of Funding or Authority STATE by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

1) If funding from federal, state, or other sources is not obtained and continued at levels sufficient to allow for purchase of the services or supplies in the indicated quantities or term.

2) If federal or state laws or rules are modified or interpreted in a way that the services are no longer allowable or appropriate for purchase under this Contract or are no longer eligible for the funding proposed for payments authorized by this Contract.

3) If any license, permit, or certificate required by law or rule, or by the terms of this Contract, is for any reason denied, revoked, suspended, or not renewed.

Termination of this Contract under this subsection is without prejudice to any obligations or liabilities of either party already accrued prior to termination.

d. Termination for Cause STATE may terminate this Contract effective upon delivery of written notice to CONTRACTOR, or any later date stated in the notice:

1) If CONTRACTOR fails to provide services required by this Contract within the time specified or any extension agreed to by STATE; or

2) If CONTRACTOR fails to perform any of the other provisions of this Contract, or so fails to pursue the work as to endanger performance of this Contract in accordance with its terms.

The rights and remedies of STATE provided in this subsection are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

7. Force Majeure. Neither party shall be held responsible for delay or default caused by fire, riot, terrorism, acts of God, or war if the event is beyond the party’s reasonable control and the affected party gives notice to the other party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default.

8. Works for Hire. CONTRACTOR acknowledges that all work(s) under this Contract is "work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) and hereby assigns to STATE all rights and interests CONTRACTOR may have in the work(s) it prepares under this Contract, including any right to derivative use of the work(s). All software and related materials developed by CONTRACTOR in performance of this Contract for STATE shall be the sole property of STATE, and CONTRACTOR hereby assigns and transfers all its right, title, and interest therein to STATE. CONTRACTOR shall execute all necessary documents to enable STATE to protect STATE’s intellectual property rights under this section.

9. Work Product. All work product, equipment or materials created for STATE or purchased by STATE under this Contract belong to STATE and must be immediately delivered to STATE at STATE'S request upon termination of this Contract.

10. Cyber Liability and Security Insurance. In the event CONTRACTOR will host data, or provide for the hosting of data through a third-party entity, CONTRACTOR shall secure and maintain Cyber Liability and Security Insurance or equivalent insurance product(s), with minimum liability limits of not less than $5,000,000 and first party limits of not less than $1,000,000, that will provide, without cost to the CONTRACTOR or STATE, an immediate response in the event of a data breach, including meeting all notification obligations of CONTRACTOR and STATE and in the event the data breach involves personal information as defined by N.D.C.C. § 51-30-1(4), the insurance policy shall also make available free credit monitoring for any affected individual for a minimum period of one year. CONTRACTOR shall defend, indemnify, save and hold harmless, the STATE, its officers, agents and employees from liability of any nature or kind, including costs and expenses, on account of a data breach arising from CONTRACTOR hosting, transmission, or control of data, any and all suits, claims, or damages of any character whatsoever, resulting from injuries or damages sustained by any person or persons or property by virtue of performance of this Contract.

11. Data Security. Remote access to Data from outside the continental United States, including remote access to Data by authorized support staff in identified support centers, is prohibited. If CONTRACTOR is unable to comply, a Request for Exemption from Information Technology Standards or Statutory Policies (SFN 51687) must be submitted in coordination with STATE and CONTRACTOR for the North Dakota Information Technology Department’s review and approval or disapproval.

12. Data Processing and Location.

a. CONTRACTOR shall transmit, process, and store STATE Data within the continental United States.

b. CONTRACTOR shall notify STATE at least 90 days prior to any relocation of STATE’s Data to a different hosting facility. STATE reserves the right to terminate the Contract without penalty if STATE does not approve of the new hosting facility.

13. Confidentiality. CONTRACTOR shall not use or disclose any information it receives from STATE under this Contract that STATE has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Contract or as authorized in advance by STATE. STATE shall not disclose any information it receives from CONTRACTOR that CONTRACTOR has previously identified as confidential and that STATE determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. ch. 44‑04. The duty of STATE and CONTRACTOR to maintain confidentiality of information under this section continues beyond the Term of this Contract.

14. Compliance with Public Records Laws. CONTRACTOR Under the North Dakota public records law and subject to the Confidentiality clause of this Contract, certain records may be open to the public upon request. Public records may include: (a) records STATE receives from CONTRACTOR under this Contract, (b) records obtained by either Party under this Contract, and (c) records generated by either Party under this Contract. CONTRACTOR agrees to contact STATE immediately upon receiving a request for information under the public records law and to comply with STATE’s instructions on how to respond to such request.

15. Third-Party Security. CONTRACTOR shall undergo the third-party security questionnaire on an annual basis at no cost to the STATE, unless CONTRACTOR has received FedRAMP, StateRAMP, or HiTrust certification. CONTRACTOR shall provide complete questionnaire within twenty-one (21) calendar days of receiving a written request. CONTRACTOR shall undergo the third-party security questionnaire when a breach has occurred.

16. Independent Entity. CONTRACTOR is an independent entity under this Contract and is not a STATE employee for any purpose, including the application of the Social Security Act, the Fair Labor Standards Act, the Federal Insurance Contribution Act, the North Dakota Unemployment Compensation Law and the North Dakota Workforce Safety and Insurance Act. CONTRACTOR retains sole and absolute discretion in the manner and means of carrying out CONTRACTOR’S activities and responsibilities under this Contract, except to the extent specified in this Contract.

17. Indemnity. CONTRACTOR agrees to defend, indemnify, and hold harmless the state of North Dakota, its agencies, officers, and employees (State), from and against claims based on the vicarious liability of the State or its agents, but not against claims based on the State’s contributory negligence, comparative and/or contributory negligence or fault, sole negligence, or intentional misconduct. The legal defense provided by CONTRACTOR to the State under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for the State is necessary. Any attorney appointed to represent the State must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under North Dakota Century Code § 54-12-08. CONTRACTOR also agrees to reimburse the State for all costs, expenses, and attorneys' fees incurred if the State prevails in an action against CONTRACTOR in establishing and litigating the indemnification coverage provided herein. This obligation shall continue after the termination of this Contract.

18. Insurance.

a. CONTRACTOR shall secure and keep in force during the term of this Contract and CONTRACTOR shall require all subcontractors, prior to commencement of an agreement between CONTRACTOR and the subcontractor, to secure and keep in force during the term of this Contract, from insurance companies, government self-insurance pools, or government self-retention funds, authorized to do business in North Dakota, the following insurance coverages:

1) Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $2,000,000 per occurrence.

2) Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $500,000 per person and $2,000,000 per occurrence.

3) Workers’ compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of this Contract.

4) Employer’s liability or “stop gap” insurance of not less than $2,000,000 as an endorsement on the workers compensation or commercial general liability insurance.

b. The insurance coverages listed above must meet the following additional requirements:

1) Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of CONTRACTOR.

2) This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-” or better by A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an “A-” rating must be approved by STATE. The policies shall be in form and terms approved by STATE.

3) The duty to defend, indemnify, and hold harmless the State under this Contract shall not be limited by the insurance required in this Contract.

4) The state of North Dakota and its agencies, officers, and employees (State) shall be endorsed on the commercial general liability policy on a primary and noncontributory basis, including any excess policies (to the extent applicable), as additional insured. The State shall have all the benefits, rights, and coverages of an additional insured under these policies that shall not be limited to the minimum limits of insurance required by this Contract or by the contractual indemnity obligations of CONTRACTOR.

5) A “Waiver of Subrogation” waiving any right to recovery the insurance company may have against the State.

6) CONTRACTOR shall furnish a certificate of insurance to the undersigned State representative prior to commencement of this Contract. All endorsements shall be provided as soon as practicable.

7) Failure to provide insurance as required in this Contract is a material breach of contract entitling State to terminate this Contract immediately.

8) CONTRACTOR shall provide at least 30-day notice of any cancellation or material change to the policies or endorsements. CONTRACTOR shall provide on an ongoing basis, current certificates of insurance during the term of the Contract. A renewal certificate will be provided 10 days prior to coverage expiration. An updated, current certificate of insurance shall be provided in the event of any change to a policy.

19. Assignment and Subcontracts. CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE’s express written consent, provided, however, that CONTRACTOR may assign its rights and obligations hereunder in the event of a change of control or sale of all or substantially all of its assets related to this Contract, whether by merger, reorganization, operation of law, or otherwise. Should Assignee be a business or entity with whom STATE is prohibited from conducting business, STATE shall have the right to terminate without cause. CONTRACTOR may enter into subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments. CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts. CONTRACTOR does not have authority to contract for or incur obligations on behalf of STATE.

20. Spoliation – Preservation of Evidence. CONTRACTOR shall promptly notify STATE of all potential claims that arise or result from this Contract. CONTRACTOR shall also take all reasonable steps to preserve all physical evidence and information that may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and grants to STATE the opportunity to review and inspect such evidence, including the scene of an accident.

21. Merger and Modification, Conflict in Documents. This Contract, including the following documents, constitutes the entire agreement between the parties. There are no understandings, agreements, or representations, oral or written, not specified within this Contract. This Contract may not be modified, supplemented, or amended, in any manner, except by written agreement signed by both parties. Notwithstanding anything herein to the contrary, in the event of any inconsistency or conflict among the documents making up this Contract, the documents must control in this order of precedence:

a. The terms of this Contract as may be amended;

b. STATE’s Solicitation Amendments related to this Invitation for Bid;

c. STATE’s Invitation for Bid;

d. CONTRACTOR’s Bid Response submitted in response to this Invitation for Bid.

e. All automated end-user agreements (e.g., click‑through, shrink-wrap, or browse-wrap) are specifically excluded and null and void. Clicking shall not represent acknowledgement or agreement to any terms or conditions contained in those agreements.

f. Terms and conditions contained within any documents furnished by the CONTRACTOR, including packing slips, shall not supersede the terms and conditions of this contract.

22. Severability. If any term of this Contract is declared to be illegal or unenforceable by a court having competent jurisdiction, the validity of the remaining terms is unaffected and, if possible, the rights and obligations of the parties are to be construed and enforced as if this Contract did not contain that term.

23. Applicable Law and Venue. This Contract is governed by and construed in accordance with the laws of the State of North Dakota. Any action to enforce this Contract must be adjudicated exclusively in the state District Court of Burleigh County, North Dakota. Each party consents to the exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.

24. Alternative Dispute Resolution – Jury Trial. By entering into this Contract, STATE does not agree to binding arbitration, mediation, or any other form of mandatory Alternative Dispute Resolution. The parties may enforce the rights and remedies in judicial proceedings. STATE does not waive any right to a jury trial.

25. Attorney Fees. In the event a lawsuit is instituted by STATE to obtain performance due under this Contract, and STATE is the prevailing party, CONTRACTOR shall, except when prohibited by N.D.C.C. § 28‑26‑04, pay STATE’s reasonable attorney fees and costs in connection with the lawsuit.

26. Nondiscrimination and Compliance with Laws. CONTRACTOR agrees to comply with all applicable federal and state laws, rules, and policies, including those relating to nondiscrimination, accessibility, and civil rights. (See N.D.C.C. Title 34 – Labor and Employment, specifically N.D.C.C. ch. 34-06.1 Equal Pay for Men and Women.)

CONTRACTOR agrees to timely file all required reports, make required payroll deductions, and timely pay all taxes and premiums owed, including sales and use taxes, unemployment compensation and workers' compensation premiums. CONTRACTOR shall have and keep current all licenses and permits required by law during the Term of this Contract. CONTRACTOR is prohibited from boycotting Israel for the duration of this Contract. (See N.D.C.C. § 54-44.4-15.) CONTRACTOR represents that it does not and will not engage in a boycotting Israel during the term of this Contract. If STATE receives evidence that CONTRACTOR boycotts Israel, STATE shall determine whether the company boycotts Israel. The foregoing does not apply to contracts with a total value of less than $100,000 or if CONTRACTOR has fewer than ten (10) full-time employees. CONTRACTOR’s failure to comply with this section may be deemed a material breach by CONTRACTOR entitling STATE to terminate in accordance with the Termination for Cause section of this Contract.

27. State Audit. All records, regardless of physical form, and the accounting practices and procedures of CONTRACTOR relevant to this Contract are subject to examination by the North Dakota State Auditor, the Auditor’s designee, or Federal auditors, if required. CONTRACTOR shall maintain all of these records for at least three (3) years following completion of this Contract and be able to provide them upon reasonable notice. STATE, State Auditor, or Auditor’s designee shall provide reasonable notice to CONTRACTOR prior to conducting examination.

28. Effectiveness of Contract. This Contract is not effective until fully executed by both…