IFB+325-25-950-005.docx

STATE OF NORTH DAKOTA

INVITATION FOR BID (IFB)

(February 2024)

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): Southeast Human Service Center PROCUREMENT OFFICER: Rebecca Bonde EMAIL: rbonde@nd.gov

PHONE: 701-298-4410

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

Email is the preferred method of submission with the IFB number and title cited in the email subject line. 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.

A person or firm interested in submitting a proposal 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).

STATE PROCUREMENT WEBSITE (SPO ONLINE)

This IFB and any related amendments and notices will be posted on the North Dakota OMB website using the State Procurement Online system (SPO Online). Bidders are responsible for checking this website to obtain all information and documents related to this IFB: https://apps.nd.gov/csd/spo/services/bidder/main.htm

Select Recent Solicitations and find this solicitation. Recent solicitations are listed by close date.

Bidders not having completed the Bidders List registration may request to receive notices related to this IFB by contacting the Procurement Officer, in writing, with the following information: IFB title, business name, contact person, mailing address, telephone number, and email address.

SECTION 1

BIDDERS INSTRUCTIONS

1. Bidder Checklist. Have you remembered to?

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

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

· Sign your bid and initial any changes or corrections.

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

· 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.

· Submit any required samples or documents.

2. Definitions.

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

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

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

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

· 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.

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

· 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.

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

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

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

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

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

· SPO Online: 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.

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

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

· If you need to register, fees apply.

· 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 Procurement Office Online system (SPO Online). 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. The online application form requests contact information for the receipt of solicitation notices. The Bidders List application and SPO Online system use commodity codes to identify categories of goods, services, and information technology.

The commodity code used for this solicitation is: 961 – 17, 36

Visit the OMB website for instructions and the online Bidders List Application:

Bidders List Registration Website

For assistance with Bidders List Registration, contact State Procurement Help Desk at 701-328-1728 or infospo@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.

Upload Response Through the State Procurement Online System (SPO Online):

Bidders must electronically submit Bid Responses through SPO Online by the Bid Response Deadline.

DO NOT WAIT UNTIL THE “LAST MINUTE” TO SUBMIT A RESPONSE. Recommend uploading response 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 infospo@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.

1. This solicitation is posted on SPO Online at: https://apps.nd.gov/csd/spo/services/bidder/main.htm

2. Select “Recent Solicitations” and find this solicitation. Solicitations are listed by close date.

3. Use “Upload Response” to upload a maximum of five (5), clearly labeled documents before the Bid Response Deadline.

4. Offerors must upload their Bid Response as requested in the Bid Response section of this IFB.

5. The maximum file size allowed is 50 MB per file.

6. There is a 50-character file name limitation for the document being uploaded.

7. There is a 75-character limit in the TITLE field within SPO Online.

8. All SPO Online field entries must be alphanumeric. Dashes and underscores are allowed; however, the system does not accept other special characters, such as apostrophe, & symbol, quotation marks, etc.

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

10.Bidder will receive an email confirmation from infospo@nd.gov that the upload response was received, including the “File Description” for the uploaded files. Review this email to ensure all files were successfully uploaded. If Bidder does not receive an email confirmation, the upload was not successful, and you will need to upload the files again. If Bidder does not receive an email confirmation after the reattempt, contact the Procurement Officer or the State Procurement Office at infospo@nd.gov or 701.328.2740.

Visit https://www.omb.nd.gov/sites/www/files/documents/doing-business-with-the-state/procurement/spo-electronic-response-external-job-aid.pdf for the SPO Electronic Response Job Aid which describes how to submit an electronic response.

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 Response results may be posted on SPO Online: https://apps.nd.gov/csd/spo/services/bidder/main.htm

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 offerors 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).

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 July 1, 2025, and ends on June 30, 2027.

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

c. Extension Option. STATE reserves the right to extend this Contract for an additional period of time, not to exceed 12 months, beyond the current termination date of this contract.

d. Renewal Option. STATE may renew this Contract upon satisfactory completion of the initial Contract Term. STATE reserves the right to execute up to two options to renew this Contract under the same terms and conditions for a period of 24 months each. STATE and CONTRACTOR may negotiate the hourly rate at each renewal period.

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.

· Invoices must be addressed to the Purchasing Agency. All invoice and 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. Inspection and Acceptance or Rejection. The STATE reserves the right to conduct inspections and investigations related to the Bidder and the offered commodities or services, including, but not limited to, the firm, personnel, qualifications, and the commodities and services offered to make determinations regarding compliance with the Bid Response requirements and responsibility of the Bidder. All material and workmanship are subject to inspection and testing by the STATE at the point of manufacturer, place of storage, or upon receipt. The STATE reserves the right to reject any commodities or services and terminate the contract if the CONTRACTOR fails to comply with the specifications, terms and conditions, or the seller’s express or implied warranties. Rejected commodities will be removed at the CONTRACTOR’s expense. Failure to satisfactorily perform may result in suspension or debarment from the Bidders List.

If commodities or services are rejected as being not compliant with the requirements of this solicitation, the STATE will inform the CONTRACTOR, in writing. The Purchasing Agency may provide the CONTRACTOR with a reasonable opportunity to cure, whenever practicable, as set forth, in writing, by the Purchasing Agency.

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

6. 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.

7. 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.

8. Pricing, Unit of Measure. The unit price is 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).

9. Time is of the Essence. CONTRACTOR hereby acknowledges that time is of the essence for performance under this Contract unless otherwise agreed to, in writing, by the parties.

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. 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.

SECTION 5

BID RESPONSE

SPECIFICATIONS

Scope of Service:

Provision of in-person medical interpreting services for State’s client appointments and home visits on an as-needed basis.

Specifications Medical interpreting must be provided for common languages for non-English speaking clients in person. Examples of languages commonly needed in the North Dakota region as are as follows: Krahn, Arabic, Bosnian, Dari, Farsi, Kinyawaranda, Kirundi, Kurdish, Oromo, Pashto, Persian, Somali, Swahili, Spanish, Kirundi, Nepales, and Vietnamese. As other New Americans resettle in State’s area with different languages, successful bidder will work to find individuals to provide language interpretation for non-English speaking individuals as they are identified. Each individual interpreter must receive annual training on medical interpreting. State will pay a 60-minute minimum fee and will make payments to the nearest 15-minute unit. State will pay for services cancelled within 24 hours of scheduled appointment time.

Delivery Address: Southeast Human Service Center, 2624 9th Ave S, Fargo, ND 58103

Delivery Date Time Required: July 1, 2025, through June 30, 2027

Billing Address: Same as Delivery Address

Bidder Prompt Payment Discount, if applicable:

(Discounts not considered in evaluating prices.)

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. § 3212.204.

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. § 3212.204.

Acting through its Purchasing Agency:

BY: (Signature)

Printed Name:

Title:

Date:

SECTION 6

SAMPLE PURCHASE OF SERVICE AGREEMENT

The state of North Dakota, acting through its North Dakota Department of Health and Human Services, Southeast Human Service Center (State), has determined the services identified in the Scope of Service paragraph below should be purchased.

{Vendor} (Vendor), {Address}, {City}, {State} {Zip}, proposes to provide those services.

State and Vendor therefore enter into the following:

1. TERM OF THE AGREEMENT

This Agreement runs from July 1, 2025, through June 30, 2027.

a. No Automatic Renewal

This Agreement will not automatically renew.

b. Extension Option

State reserves the right to extend the Agreement for an additional period of time, not to exceed 12 months, beyond the current termination date of the Agreement.

c. Renewal Option

State may renew this Agreement upon satisfactory completion of the initial Agreement term. State reserves the right to execute up to two options to renew this Agreement under the same terms and conditions for a period of 24 months each. The estimated dollar amount for renewal options is dependent upon legislative appropriation. STATE and Vendor may negotiate the hourly rate at each renewal option.

2. SCOPE OF SERVICE

Vendor shall provide In Person Medical Interpreting Services as outlined in State’s Invitation for Bid (IFB) number 325-25-950-005, dated February 19, 2025, and Vendor’s Bid Response, dated ______________, which are both made a part of this Agreement by their reference here.

3. COMPENSATION

State, upon receipt and approval of SFN 1763 Request for Reimbursement or other form required by State, shall pay Vendor $_____ per hour for completing the scope of service. Vendor shall submit its request for reimbursement to State monthly. Vendor shall submit its final payment request to State no later than 30 days after the expiration or termination of this Agreement.

4. TERMINATION

a. Termination by Mutual Agreement or Notice

This Agreement may be terminated at any time by mutual consent of both parties executed in writing, or upon 30-days’ written notice by either party, with or without cause.

b. Early Termination in the Public Interest

State is entering into this Agreement for the purpose of carrying out the public policy of the state of North Dakota, as determined by its Governor, Legislative Assembly, and Courts. If this Agreement ceases to further the public policy of the state of North Dakota, State, in its sole discretion, by written notice to Vendor, may terminate this Agreement in whole or in part.

c. Termination for Lack of Funding or Authority

State may terminate the whole or any part of this Agreement, effective upon delivery of written notice to Vendor or on any later date stated in the notice, 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 Agreement or are no longer eligible for the funding proposed for payments authorized by this Agreement.

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

Termination of this Agreement 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 Agreement effective upon delivery of written notice to Vendor, or any later date stated in the notice:

1) If Vendor fails to provide services required by this Agreement within the time specified or any extension agreed to by State; or

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

The rights and remedies of State provided in this section are not exclusive and are in addition to any other rights and remedies provided by law or under this Agreement.

5. NONPERFORMANCE

Failure by Vendor to perform the terms of this Agreement constitutes a breach of contract and will result in the termination of the Agreement. If a breach by Vendor renders the Agreement impossible of performance by Vendor and is caused by circumstances beyond the control of Vendor, and through no fault of Vendor, the Agreement will be terminated and State may set off, against any liability or obligations owed to Vendor under this Agreement or otherwise, any amounts paid for individual items of work which are incomplete at the time of the breach.

6. FORCE MAJEURE

Neither party shall be held responsible for delay or default caused by fire, flood, riot, terrorism, pandemics, 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 immediately upon occurrence of the event that caused, or is reasonably expected to cause, the delay or default.

7. VENDOR’S UNDERSTANDING OF TERM OF FUNDING

Vendor understands that this Agreement is a one-time agreement, and acknowledges that it has received no assurances that this Agreement may be extended beyond its expiration date.

8. VENDOR ASSURANCES

This Agreement will be construed according to the laws of the state of North Dakota. In connection with furnishing supplies or performing work under this Agreement, persons who contract with or receive funds to provide services to State are obligated and agree to comply with all local, state, and federal laws, regulations, and executive orders related to the performance of this Agreement, including the following: Fair Labor Standards Act, Equal Pay Act of 1963, Titles VI and VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the North Dakota Human Rights Act, the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970, the Drug Abuse Prevention, Treatment, and Rehabilitation Act of 1970, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, the Drug-Free Workplace Act of 1988, the Americans with Disabilities Act of 1990, Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act of 1992, the Pro-Children Act of 1994, Title IX of the Education Amendments of 1972, and Section 1557 of the Affordable Care Act.

By signing this Agreement Vendor certifies that neither Vendor, Subcontractor, nor their principals are presently debarred, declared ineligible, or voluntarily excluded from participation in transactions with the state or federal government by any department or agency of the state or federal government.

Vendor must be an approved vendor with the Office of Management and Budget within the state of North Dakota as required by North Dakota Century Code § 54-44.4-09.

9. AUTHORITY TO CONTRACT

Vendor may subcontract with qualified vendors of services, provided that any subcontract acknowledges the binding nature of this Agreement, and incorporates this Agreement, together with its attachments, as appropriate. Vendor is solely responsible for the performance of any subcontractor. Vendor may not contract for or on behalf of or incur obligations on behalf of State. Vendor may not assign or otherwise transfer or delegate any right or duty without State’s express written consent.

10. INDEPENDENT ENTITY

Vendor is an independent entity under this Agreement. Vendor, its employees, agents, or representatives are not employees of State for any purpose, including the application of the Social Security Act, the Fair Labor Standards Act, the Federal Insurance Contribution Act, the Federal Unemployment Act, the North Dakota Unemployment Compensation Law, and the North Dakota Workforce Safety and Insurance Act. No part of this Agreement may be construed to represent the creation of an employer/employee relationship between State and Vendor. Vendor retains sole and absolute discretion in the manner and means of carrying out Vendor’s activities and responsibilities under this Agreement, except to the extent specified in this Agreement.

11. INDEMNITY

Vendor 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. This obligation to defend, indemnify, and hold harmless does not extend to professional liability claims arising from professional errors and omissions. The legal defense provided by Vendor 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. Vendor also agrees to reimburse the State for all costs, expenses, and attorneys' fees incurred if the State prevails in an action against Vendor in establishing and litigating the indemnification coverage provided herein. This obligation shall continue after the termination of this Agreement.

12. INSURANCE

a. Vendor shall provide certificate of insurance and any endorsements to State electronically via to:

Name: Kyle J. Nelson Email Address: kylnelson@nd.gov Email Subject Line: Certificate of Insurance - INSERT CONTRACT NUMBER/NAME

b. Vendor shall secure and keep in force during the term of this Agreement and Vendor shall require all subcontractors, prior to commencement of an agreement between Vendor and the subcontractor, to secure and keep in force during the term of this Agreement, 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 Agreement.

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.

5) Professional errors and omissions with minimum limits of $1,000,000 per claim and in the aggregate, Vendor shall continuously maintain such coverage during the contract period and for three years thereafter. In the event of a change or cancellation of coverage, Vendor shall purchase an extended reporting period to meet the time periods required in this section.

c. 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 Vendor.

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 the State. The policies shall be in form and terms approved by the State.

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

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 Agreement or by the contractual indemnity obligations of Vendor.

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

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

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

8) Vendor shall provide at least 30-day notice of any cancellation or material change to the policies or endorsements. Vendor shall provide on an ongoing basis, current certificates of insurance during the term of the Agreement. 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.

13. NOTICE

Any notice or other communication required under this Agreement must be given by registered or certified mail and is complete on the date mailed when addressed to the parties at the following addresses:

2624 9th Ave S Fargo, ND 58103

Notice provided under this provision does not meet the notice requirements for monetary claims against State found at North Dakota Century Code § 32-12.2-04.

14. INTEGRATION, MODIFICATION, AND CONFLICT IN DOCUMENTS

This Agreement, including the following documents, constitutes the entire Agreement between Vendor and State. There are no understandings, agreements, or representations, oral or written, not specified within this Agreement. No alteration, amendment, or modification of this Agreement is effective unless it is reduced to writing, signed by the parties, and attached to the Agreement.

Notwithstanding anything herein to the contrary, in the event of any inconsistency or conflict among the documents making up this Agreement, the documents must control in this order of precedence:

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

b. State’s Solicitation Amendment #1 to IFB number 325-25-950-005, dated ________;

c. State’s IFB number 325-25-950-005, dated February 19, 2025;

d. Vendor’s Bid Response, dated ____________, in response to IFB number 325-25-950-005.

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

If any inconsistency exists between this Agreement and other provisions of collateral contractual agreements, which are made a part of this Agreement by reference or otherwise, the provisions of this Agreement control.

15. SEVERABILITY

If any term of this Agreement is declared by a court having jurisdiction to be illegal or unenforceable, the validity of the remaining terms will not be affected and, if possible, the rights and obligations of the parties are to be construed and enforced as if the Agreement does not contain the illegal or unenforceable term.

16. APPLICABLE LAW AND VENUE

This Agreement is governed by and construed according to the laws of the state of North Dakota. Any action to enforce this Agreement 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.

17. ASSIGNMENT

Vendor may not assign this Agreement without State’s express written consent, provided, however, that Vendor 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 Agreement, whether by merger, reorganization, operation of law, or otherwise. Should the assignee be a business or entity with whom State is prohibited from conducting business, State shall have the right to terminate without cause. This Agreement is equally binding on the respective parties and their successors and assigns.

18. SPOLIATION – PRESERVATION OF EVIDENCE

Vendor shall promptly notify State of all potential claims that arise or result from this Agreement. Vendor 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 the evidence, including the scene of an accident.

19. WORKS FOR HIRE

Vendor acknowledges that all work(s) under this Agreement 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 Vendor may have in the work(s) it prepares under this Agreement, including any right to derivative use of the work(s). All software and related materials developed by Vendor in performance of this Agreement for State shall be the sole property of State, and Vendor hereby assigns and transfers all its right, title, and interest therein to State. Vendor shall execute all necessary documents to enable State to protect State’s intellectual property rights under this section.

20. WORK PRODUCT, EQUIPMENT, AND MATERIALS

All work product, equipment, and materials created for State or purchased by State under this Agreement belong to State and must be delivered to State at State’s request upon expiration or termination of this Agreement.

21. CONFIDENTIAL INFORMATION

Vendor shall not use or disclose any information it receives from State under this Agreement that State has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Agreement or as authorized in advance by State. State shall not disclose any information it receives from Vendor that Vendor 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 open records law found in North Dakota Century Code chapter 44-04. The duty of State and Vendor to maintain confidentiality of information under this section continues beyond the term of this Agreement, including any extensions or renewals.

22. COMPLIANCE WITH PUBLIC RECORDS LAWS

Vendor understands that, in accordance with this Agreement’s Confidential Information section, State must disclose to the public upon request any records it receives from Vendor. Vendor further understands that any records obtained or generated by Vendor under this Agreement, except for records that are confidential under this Agreement, may, under certain circumstances, be open to the public upon request under certain circumstances under the North Dakota open records law. Vendor agrees to contact State immediately upon receiving a request for information under the open records law and to comply with State’s instructions on how to respond to the request.

23. ATTORNEY FEES

If a lawsuit is filed by State to obtain performance due under this Agreement, and State is the prevailing party, Vendor shall pay State’s reasonable attorney fees and costs in connection with the lawsuit, except when prohibited by North Dakota Century Code § 28-26-04.

24. ALTERNATIVE DISPUTE RESOLUTION – JURY TRIAL

State does not agree to any form of binding arbitration, mediation, or other forms of mandatory alternative dispute resolution. The parties may enforce their rights and remedies in judicial proceedings. State does not waive any right to a jury trial.

25. NONDISCRIMINATION AND COMPLIANCE WITH LAWS

Vendor 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.)

Vendor 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. Vendor shall have and keep current all licenses and permits required by law during the term of this Agreement.

Vendor is prohibited from boycotting Israel for the duration of this Agreement. (See N.D.C.C § 54-44.4-15.) Vendor represents that it does not and will not engage in boycotting Israel during the term of this Agreement. If State receives evidence that Vendor 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 Vendor has fewer than ten full-time employees.

Vendor’s failure to comply with this section may be deemed a material breach by Vendor entitling State to terminate in accordance with the Termination for Cause section of this Agreement.

26. ACCESS TO BOOKS AND RECORDS

Vendor shall provide State, the federal government, and their duly authorized representatives access to the books, documents, papers, and records of Vendor, which are pertinent to the services provided under this Agreement, for the purpose of making an audit or examination, or for making excerpts and transcripts. All records, regardless of physical form, and the accounting practices and procedures of Vendor relevant to this Agreement are subject to examination by the North Dakota State Auditor, the Auditor’s designee, or federal auditors. Vendor shall maintain all of these records for at least three years following completion of this Agreement and be able to provide them at any reasonable time. State, State Auditor, or Auditor’s designee shall provide reasonable notice.