Informal RFQ RAWS Final 08082024.pdf

RFQ: RAWS for Two Training Centers Page 1 of 27

State of Oregon

Oregon Military Department

Request for Quote

Purchase of Remote Area Weather Stations (“RAWS”) for Two Training Centers in Oregon

Single Point of Contact (“SPC”): Moya McKeehan, Procurement & Contract Specialist

Address: Rees Training Center

78798 Ordnance Road

City, State, Zip: Hermiston, Oregon 97838

Phone (voice): 971-355-7880

E-mail: Moya.L.MCKEEHAN@omd.oregon.gov

QUOTES MUST BE RECEIVED BY August 23, 2024 at 5:00 PM PT

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1.1 SUMMARY OVERVIEW

The State of Oregon, acting by and through the Oregon Military Department, (“Agency” or “OMD”), is issuing this Request for Quote (“RFQ”) to establish Purchase Orders for the purchase of hardware for two (2) Remote Area Weather Stations (“RAWS” or “System”) and software subscriptions for one (1) year for both stations.

1.2 SCOPE OF WORK/STATEMENT OF WORK/SPECIFICATIONS

Contractor shall supply and deliver hardware for one (1) RAWS to Rees Training Center, 78798 Ordnance Road, Hermiston, OR 97838 and hardware for one (1) RAWS to Camp

Rilea, 33168 Patriot Way, Warrenton, OR 97146. Contractor shall coordinate access to software for both RAWS with Agency’s designated representative.

RAWS hardware and software must be compliant with National Interagency Fire Center

(“NIFC”) standards, US National Fire Rating Systems standards, and the Wild Land Fire

Management Information database. RAWS hardware and software must meet the following requirements:

1) System does not require proprietary external devices to maintain RAWS hardware and software;

2) System has user friendly external program to interface with RAWS hardware and software for individuals who do not have a working knowledge of programming language; and

3) Agency personnel or third-parties are allowed to calibrate and maintain RAWS hardware and software.

System components must include, but are not limited to, the following:

1) Data logger;

2) Tower mast;

3) Antenna;

4) Solar radiation sensor;

5) Wind speed and direction sensor;

6) Rain gauge;

7) Air temperature and humidity sensor;

8) Fuel moisture and temperature sensor;

9) Solar panel; and

10) Solid framework with adjustable legs that will withstand 125 mph winds.

1.3 SINGLE POINT OF CONTACT

All questions and requests for clarification about any component of this RFQ, including the technical requirements, contractual requirements, and the procurement process must be submitted in writing (mail or email is acceptable) by 5:00 PM, August 16, 2024 to the SPC identified on the cover page of this RFQ.

1.4 DEFINITIONS

The following definitions apply to this RFQ and the resulting Purchase Orders.

“Addendum” or “Addenda” (referred to as “Amendment” in OregonBuys) means an addition or deletion to, a material change in, or a clarification of the RFQ. Each Addendum shall be

RFQ: RAWS for Two Training Centers Page 3 of 27 labeled as such and shall be made available to all interested Offerors in accordance with OAR 125-247-0430(2). The plural form of “Addendum” is “Addenda”.

“Agency” or “Owner” means the Oregon Military Department (“OMD”).

“Bid” means the Offeror’s Written offer submitted in response to the RFQ, including all necessary attachments and information required to be submitted prior to award. Bid also means “Offer” or “Quote”.

“Bidder” means an individual, organization or representative of an organization that submits a Bid in response to a RFQ. Bidder also means “Offeror”.

“Closing” (referred to as “Bid Opening Date” in OregonBuys) means the date and time set in the RFQ for Bid submission, after which Bids may not be submitted, modified, or withdrawn by Bidder.

“DAS” means the Oregon Department of Administrative Services, acting through Enterprise Goods and Services Division, Procurement Services.

“Offer” means the Offeror’s Written offer submitted in response to the RFQ, including all necessary attachments and information required to be submitted prior to award. Offer also means “Bid” or “Quote”.

“Offeror” means an individual, organization or representative of an organization that submits a Bid in response to a RFQ. Offeror also means “Bidder”.

“OregonBuys” means the on-line electronic Automated Oregon Procurement System administered by the State’s Department of Administrative Services. The OregonBuys System website is located at: www.OregonBuys.gov.

“Quote" means the Offeror's written offer submitted in response to the RFQ, including all necessary attachments and information required to be submitted prior to award. Quote also means "Offer" or “Bid”.

"Request for Quote" or "RFQ" means all documents, whether attached or incorporated by reference, and any Addenda thereto, used for soliciting Quotes.

“State” means the State of Oregon.

“Writing” means letters, characters and symbols inscribed on paper by hand, print, type or other method of impression, intend to represent or convey particular ideas or meanings.

“Writing” when required or permitted by law, or required or permitted in a Solicitation Document, also means letters, characters and symbols made in electronic form and intended to represent or convey particular ideas or meanings. unless a hard copy is specified as required, email will satisfy a Written/In Writing requirement.

1.5 OREGONBUYS / RFQ DOCUMENT AVAILABILITY

1.5.1 REGISTRATION REQUIREMENT

This RFQ is advertised as a “Bid Solicitation” in the OregonBuys web-based eProcurement system. All vendors must be registered in OregonBuys to do business with the State. Registration is free. To create a vendor account, click the blue “Register” button in the top right corner of the OregonBuys website: https://oregonbuys.gov/bso.

For registration assistance see vendor registration guidance. Vendors are responsible http://www.oregonbuys.gov/

RFQ: RAWS for Two Training Centers Page 4 of 27 for ensuring that their vendor registration and information is current and correct in OregonBuys. OMD shall not be responsible for defective registration or incorrect vendor information.

Explanation of Terms used in OregonBuys.

• “Amendment” means “Addendum” or “Addenda”, as defined in OAR 125-246-

0110(1); or any form of notice associated with the solicitation, such as intent to award, cancellation, etc., as set forth in the Amendment.

• “Available Date” means the RFQ issue date for this RFQ in OregonBuys.

• “Bid Opening Date” means “Closing” as defined in OAR 125-246-0110(25). In

OregonBuys it is the deadline for submitting Quotes (Bids, Proposals or other required responses) required by a Bid Solicitation.

• “Bid Solicitation” means any form of solicitation: Request for Proposal, Invitation to Bid, Request for Quote, Request for Information, etc., including notices (sole source notice, intent to participate, etc.). Each Bid Solicitation has a separate page and ID number in OregonBuys.

• “Change Order” means a formal change to an existing MBPO, Release Requisition, or project-specific Purchase Order.

• “Master Blanket Purchase Order” (“MBPO”) means any form of parent contract/agreement (i.e. price agreement, on-call contract, etc.) that allows for purchases/releases via an ordering instrument during the term specified in the parent contract/agreement.

• “Purchase Order” means any form of project-specific contract (not awarded under an existing MBPO).

• “Quote” means any form of offer submission by vendors; i.e., Bids, Technical Proposals, Price Proposals, or any other type of offer required by a Bid Solicitation.

• “Release Requisition” means any form of ordering instrument used under a MBPO;

i.e. Purchase Order, Work Order Contract.

• “Vendor” means any form of business entity registered in OregonBuys. Only registered vendors are eligible to submit a Quote and enter Purchase Orders, MBPOs, or Release Requisitions pursuant to Bid Solicitations advertised in OregonBuys.

1.5.2 OBTAINING RFQ DOCUMENTS

This RFQ, RFQ attachments and any Addenda and notices (“Amendments”) may be downloaded from the OregonBuys eProcurement system at:

https://oregonbuys.gov/bso. Contact the Purchaser identified in OregonBuys for this RFQ if unable to access solicitation documents via OregonBuys.

Bidders are solely responsible for checking OregonBuys regularly until the Bid Opening Date and time specified in OregonBuys to assure that they have not missed any Addenda or other notices issued as “Amendments” in OregonBuys for this RFQ.

Bidder shall provide required information on the forms specified in this RFQ. Any information Bidder submits that is not required to be included on forms prescribed by this RFQ must be formatted in the manner called for in this RFQ and submitted on Bidder’s letterhead.

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Bidder shall not make the Bid contingent upon the OMD’s acceptance of Specifications, Plans or Contract terms that conflict with or are in addition to those advertised in this RFQ. Bidder must select “Yes” on the Terms & Conditions tab in OregonBuys or the Bid will be rejected.

1.5.3 RFQ ATTACHMENTS AND ADDENDA \

In addition to the provisions set forth and linked within this RFQ, this RFQ incorporates by this reference the information published or linked on the OregonBuys “Bid Solicitation” page for this RFQ, including but not limited to:

• Details entered in the Header Information section;

• All RFQ Attachments, Addenda and notices (“Amendments” in OregonBuys), question and answer documents, and any other files linked in the File Attachments and Form Attachments subsections; and

• Information, if any, entered in the “Questions” and “Item Information” sections.

1.6 BID SUBMISSION REQUIREMENTS

1.6.1 SUBMITTING BIDS

Bidder may submit their bids via OregonBuys, email, common carrier, or in person.

Bidder shall submit their bids to the SPC identified on the cover page of this RFQ. Faxed bids will not accepted. Bidder is solely responsible for ensuring its Bid is received at Agency by Closing in accordance with the RFQ requirements. Agency shall not be responsible for any delays in delivery.

1.6.2 CLOSING

Bids must be submitted by Closing to be considered. Late bids will be deemed nonresponsive and given no further consideration.

1.6.3 REQUIRED FORMS

Bidder must submit the following forms:

• Attachment B – Bid Cover Sheet

• Attachment C – Bid Submittal Form with attached hardware and software product specifications and software terms and conditions

1.7 COST COMPARISON

Agency shall award Purchase Orders for both hardware and software to the Responsible Bidder submitting the lowest Responsive Bid whose bid substantially complies with the requirements and criteria set forth in this RFQ.

The lowest Responsive Bid will be determined by comparing each Bidder’s price for items 1 and 2 on Attachment C, Part 1 and items 1 and 2 on Attachment C, Part 2.

Agency reserves the right to negotiate with the Responsible Bidder submitting the lowest

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Responsive Bid to clarify the bid or to effect modifications that will make the Offer more Advantageous to the Agency.

1.8 RECIPROCAL PREFERENCE

For bid calculation purposes per OAR 125-246-0310, Agency shall add a percent increase to each out-of-state Bidder’s Bid price that is equal to the percent preference, if any, given to a Resident Bidder in the Bidder's state.

1.9 TIME FOR OFFER ACCEPTANCE

An Offeror’s Offer is a firm Offer, irrevocable, valid and binding on the Offeror for not less than sixty

(60) calendar days after the Closing date of the RFQ. OMD may request that Offerors extend, in Writing, the time during which OMD may consider their Offers. If an Offeror agrees to such extension, the Offer shall continue as a firm Offer, irrevocable, valid and binding on the Offeror for the agreed-upon extension period.

Offers not in substantial compliance with RFQ requirements will not be considered and cannot be supplemented by submissions delivered after Closing. However, OMD may waive minor informalities and irregularities, and may seek clarification of any response that, in its sole discretion, it deems necessary or advisable.

https://www.naspo.org/reciprocity1

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PLEASE NOTE THE FOLLOWING:

1. OFFEROR IS SOLELY RESPONSIBLE FOR COMPLYING WITH THE CONTENTS OF THIS

SOLICITATION. PLEASE READ AND FOLLOW THE INSTRUCTIONS CAREFULLY BEFORE

SUBMITTING YOUR OFFER.

2. THE RESULTING CONTRACT HAS THE POTENTIAL TO EXCEED $25,000.00 AND IS

FEDERALLY FUNDED:

☒ YES ☐ NO

IF YES, OFFEROR MUST MEET THE FOLLOWING REQUIREMENTS:

1. PROVIDE A UNIQUE ENTITY IDENTIFIER (“UEI”) NUMBER ON YOUR OFFER:

IF YOU NEED TO OBTAIN A UEI NUMBER PLEASE GO TO THE FOLLOWING

WEBSITE VIA THE LINK PROVIDED BELOW:

http://fedgov.dnb.com/webform

2. EXCLUDED PARTIES LIST (“EPLS”) SEARCH COMPLETED BY OMD:

THE APPARENT SUCCESSFUL OFFEROR MUST BE CLEARED (“NO RESULTS” ON

THE SEARCH) THROUGH THE EPLS SYSTEM TO BE ALLOWED TO RECEIVE A

FEDERALLY FUNDED CONTRACT. FOR INFORMATION CONCERNING EPLS YOU

MAY ACCESS THE WEBSITE VIA THE LINK PROVIDED BELOW:

https://www.sam.gov/portal/SAM#1 http://fedgov.dnb.com/webform https://www.sam.gov/portal/SAM#1

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ATTACHMENT A — PURCHASE ORDER TERMS AND CONDITIONS

FOR HARDWARE

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RFQ: RAWS for Two Training Centers Page 10 of 27

ATTACHMENT B —TERMS AND CONDITIONS

FOR SOFTWARE

Agreement and Rider to Terms of Service

This rider (Rider) is between [name], a [state] Corporation (Licensor) and the State of Oregon, acting through its Oregon Military Department (Licensee) This Rider, together with all exhibits, constitutes the complete agreement between the parties (Agreement).

Licensor and Licensee agree:

1. Applicability and Authority. This Agreement pertains to Software as a Service for Remote Area Weather

Station at [Rees Training Center or Camp Rilea] (Services), including related intellectual property (such as documentation) and support to be provided as a service by Licensor to Licensee under this Agreement.

Licensee is authorized to enter into this Agreement pursuant to its Request for Quote for Purchase of

Remote Area Weather Stations (“RAWS”) for Two Training Centers in Oregon. Services are limited to the scope of Software as a Service to support installation and maintenance of a RAWS at [Rees Training Center or Camp Rilea] and subject to approval by Licensee’s Contract Administrator.

1.1. Licensor shall deliver Services in accordance with this Agreement, inclusive of Licensor’s Terms of

Service. Services must meet the requirements of Exhibit A.

2. Complete Agreement. This Agreement consists of this Rider and Licensor’s Terms of Service (TOS), in the form attached as Exhibit A. Exhibit A is hereby incorporated into this Agreement by this reference. This

Rider amends and supersedes any provision to the contrary in the TOS. This Agreement merges all prior and contemporaneous communications with respect to the matters described in this Agreement.

3. Order of Precedence. In the event of any conflict between the Rider, the TOS, any terms and conditions published by Licensor on or after the Effective Date of this Agreement (including updates to any policy referenced in the TOS), and any terms presented to an end user in a ‘click wrap’ or similar end user agreement, the conflict will be resolved in that order.

4. Effective Date and Term. This Agreement is effective on the date of the signed Purchase Order or when it is fully executed and approved according to applicable laws, rules and regulations, whichever date is later

(Effective Date). This Agreement continues in effect for one (1) year from Effective Date unless terminated by either party by providing notice in the manner specified in the TOS or specified in this Rider.

4.1. There is no automatic renewal for the services. Licensee may renew its subscription for an agreed upon term as of the anniversary date.

4.1.1. Licensor may terminate or suspend the Services but not access to Licensee Data held as part of the Services if Licensee fails to pay an undisputed past-due invoice for a renewal term within 30 calendar days of Licensee’s receipt of written notice from Licensor of such failure.

4.1.2. If Licensee wishes to reinstate the Services, Licensee will pay the fee(s) due for the current term at then-current prices available to similar-sized government clients in good standing. Licensee will not pay a penalty, or be obligated to pay for additional subscription terms.

5. Payment.

5.1. The maximum amount payable under this Agreement is $XXXX.

5.2. Licensee’s obligation to pay late charges is subject to ORS 293.462.

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5.3. Licensee will not be obligated to make any payment for services or other charges that exceed the maximum amount payable under this Agreement, unless the maximum additional amount payable is agreed upon in advance and authorized by Licensee in writing.

5.4. Any Licensee obligation to pay travel expenses, including transportation, lodging, or meals, is subject to the rates and limitations of the Statewide Travel Policy, currently found online at:

http://www.oregon.gov/das/Financial/Acctng/Documents/40.10.00.pdf.

5.5. Licensor shall not retain fees paid but not earned if this Agreement is terminated prior to its expiration.

6. Confidentiality of Licensor Information.

6.1. Any obligation of Licensee to maintain the confidentiality of Licensor’s proprietary information provided to Licensee is conditioned by and subject to Licensee’s obligations under the Oregon Public Records Law, ORS 192.311 to 192.478 which may require disclosure of proprietary information as a “public record” unless exempt under ORS 192.345 or ORS 192.355.

7. Licensee Data.

7.1. Ownership of Licensee Data. Any information Licensor or its employees or agents receives or creates relating to Licensee or Licensee’s clients (Licensee Data) is owned by Licensee. Licensee hereby grants Licensor a license to use Licensee Data to fulfill the purposes of this Agreement, and otherwise only as specifically described in this Agreement. Licensor hereby irrevocably assigns, transfers and conveys, and will cause its employees, subcontractors and agents to assign, transfer and convey without further consideration all right, title, and interest in Licensee Data to Licensee.

Upon request by Licensee, Licensor will or will cause the execution and delivery of any documents that may be necessary to preserve, or enable Licensee to enforce, its rights with respect to Licensee Data.

7.2. Confidentiality Generally. Licensor acknowledges that, it and its employees, subcontractors or agents in the course of this Agreement may be exposed to or acquire information that is confidential to Licensee or Licensee’s clients. Licensee Data is confidential information. Licensor shall maintain the confidentiality of Licensee’s confidential information. Confidential information does not include:

7.2.1. Information that becomes part of the public domain through lawful means and without breach of any confidentiality obligation by Licensor;

7.2.2. Information subsequently and rightfully received from third parties who have the necessary rights to transfer the information without any obligation of confidentiality;

7.2.3. Information that was known to Licensor prior to the Effective Date of the Agreement without obligation of confidentiality;

7.2.4. Information that is independently developed by Licensor and documented in writing without use of, or reference to, any confidential information of Licensee; and

7.2.5. Subject to Licensor’s obligation to provide notice under Section 8, Notifications, information required to be disclosed by compulsory judicial or administrative process or by law or regulation.

7.3. Privacy and Security Training. Licensor shall ensure its employees, agents, and contractors receive periodic training on privacy and security obligations relating to this Agreement.

7.4. Limited Purposes. Licensor shall limit the use or disclosure of Licensee Data to persons directly connected with the administration of this Agreement.

http://www.oregon.gov/das/Financial/Acctng/Documents/40.10.00.pdf

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7.5. No Overseas Access, Storage, or Transmission. Licensee Data will not be accessed from, transmitted, or stored outside of the United States or its territories, including for any maintenance, support, disaster recovery, or data backup.

7.6. Prohibition on Data Mining. Licensor shall not capture, maintain, scan, index, share or use Licensee Data, or otherwise use any data-mining technology, for any non-authorized activity, and shall not permit its agents or subcontractors to do so. For purposes of this requirement, “non-authorized activity” means data mining or processing of data, stored or transmitted by the service, for unrelated commercial purposes, advertising or advertising-related purposes, or for any other purpose other than security analysis that is not explicitly authorized in this Agreement.

7.7. Privacy Protections. The information exchanged between the parties may include Licensee Data subject to specific confidentiality protections under state or federal law, and the implementing regulations of those laws. Licensor, its employees, agents, and contractors shall comply with laws and regulations applicable to the information, including as those laws and regulations may be updated from time to time. Licensor shall maintain protections required by law or this Agreement for any retained

Licensee Data for so long as Licensor (including through any third party) retains Licensee Data.

7.8. Access. Licensor shall not suspend Licensee’s access to Licensee Data at any time during the term of this Agreement or the post-termination access period.

7.8.1. Response to Public Records Request for Agency Data. The Services are the system of record for

Licensee Data. Licensee, as an executive department agency of the State of Oregon, must respond to requests for Licensee Data and other public records under Oregon’s Public Records laws, including ORS 192.311 to 192.478, within set timeframes. Licensor shall support the ability of Licensee to respond to public records requests for Licensee Data in accordance with applicable law.

7.9. Post-Termination Access to Licensee Data. Upon Agreement termination (including by expiration), Licensor shall, at Licensee’s discretion, either return all Licensee Data to Licensee (or delegate) in an agreed-upon format, or ensure Licensee has access and the ability to retrieve Licensee Data for at least a 90 calendar day period following termination. This 90 day period will be at no additional charge to

Licensee. Licensor shall not retain any copies of Licensee Data following Licensee’s written verification that Licensee no longer requires post-termination access, except as necessary for audit verification purposes.

7.10. Transition Services. Licensor shall at Licensee’s option provide transition services to support a responsible and secure transition of Services and Licensee Data to another service provider or to

Licensee.

7.11. Sanitization. Licensor shall not destroy Licensee Data without Licensee’s written authorization.

Licensor shall notify Licensee of any conditions that make returning all Licensee Data not feasible.

Upon Licensee’s written acknowledgement that returning all Licensee Data is not feasible and consent, Licensor shall purge or destroy retained Licensee Data in all its forms (including copies of returned data) in accordance with the most current version of NIST SP 800-88 or other agreed-upon standard and provide Licensee with written certification of sanitization.

8. Notifications.

8.1. Incidents and Breaches. In the event Licensor or its subcontractor or agents discover or are notified of a suspected or confirmed security incident, or a suspected or confirmed breach of security or privacy, Licensor shall notify Licensee’s point of contact (or delegate) immediately, and in no event more than

24 hours following discovery or notification. An incident is an observable, measurable occurrence that is a deviation from expected operations or activities. A breach includes a failure to comply with

Licensor’s confidentiality obligations. If Licensee determines that a breach requires notification of its

RFQ: RAWS for Two Training Centers Page 13 of 27 clients, or other notification required by law, Licensee will have sole control over the notification content, timing, and method, subject to Licensor’s obligations under applicable law.

8.2. Requests for Licensee Data. In the event Licensor receives a third party request for Licensee Data, including any electronic discovery, litigation hold, or discovery searches, Licensor shall first give Licensee notice and provide such information as may reasonably be necessary to enable Licensee to take action to protect its interests.

8.3. Changes in Law. Each party will provide notice to the other of any change in law, or any other legal development, which may significantly affect its ability to perform its obligations.

9. Security and Hosting.

9.1. Compliance with Laws, Regulations, and Policies. Licensor represents and warrants it and all

Licensor employees, contractors, and agents shall comply with all applicable state and federal laws and regulations, and State of Oregon policies governing use and disclosure of Licensee Data, including as those laws, regulations, and policies may be updated from time to time. Applicable laws, regulations, and policies include but are not limited to:

9.1.1. Oregon’s Statewide Information Security Standards, found online at:

https://www.oregon.gov/das/OSCIO/Pages/SecurityGuidance.aspxf.

9.1.2. Oregon’s Statewide Information Security Plan, found online at:

https://www.oregon.gov/das/OSCIO/Pages/SecurityGuidance.aspx.

9.1.3. Oregon’s Statewide Policies: www.oregon.gov/das/Pages/policies.aspx#IT.

9.1.4. The Oregon Consumer Information Protection Act (OCIPA), ORS 646A.600 through 646A.628.

For purposes of OCIPA, Licensor is a vendor.

9.2. Privacy and Security Measures. Licensor represents and warrants it has established and will maintain privacy and security measures that meet or exceed the standards set in laws, rules, and regulations applicable to the safeguarding, security, and privacy of Licensee Data. Licensor shall monitor, periodically assess, and update its physical, technical, and logical security controls and risk to ensure continued effectiveness of those controls.

9.3. Security Risk Management Plan. Licensor shall ensure the level of security and privacy protection required for the Services is documented in a security risk management plan. Licensor will make its plan available to Licensee for review upon request.

9.4. Testing. Licensee reserves the right to conduct periodic security testing of the Services.

9.5. Background Checks. Licensor has completed a criminal background check on its employees, agents, and contractors providing services related to this Agreement and who have administrator-level access to

Licensee Data. Upon reasonable written request of Licensee, Licensor shall certify in writing that such background checks have been completed, and the checks revealed no negative findings pertaining to dishonesty, fraud, or theft on employees, agents, or contractors providing services related to this

Agreement.

9.6. Hosting Services. Services are provided via [provide information on hosting services, including any named vendor and certification], which are located within the continental United States. This is a material representation of fact upon which Licensee may rely. Licensor shall not transfer or materially modify these hosting services without advance written consent from Licensee’s Authorized

Representative. Licensor networks and systems and Licensee Data will not be accessed from, transmitted, or stored outside of the United States or its territories, including for any maintenance, support, disaster recovery, or data backup.

https://www.oregon.gov/das/OSCIO/Pages/SecurityGuidance.aspx https://www.oregon.gov/das/OSCIO/Pages/SecurityGuidance.aspx http://www.oregon.gov/das/Pages/policies.aspx#IT

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9.7. Third Party Audit. Licensor shall ensure it and its subservice organizations undergo annual examination from an independent auditor to assess the Services’ compliance with at least NIST 800-53

“Moderate” security controls (National Institute of Standards and Technology (NIST) Special

Publication (SP) 800-53). Licensor shall provide an exact copy of the most recent examination results report to Licensee upon request.

9.8. Security Logs and Reports. Licensor shall allow Licensee access to system security logs that affect the Services, Licensee Data, or processes. This includes the ability for Licensee to request a report of the records that a specific user accessed over a specified period of time.

9.9. Licensee Audit Rights and Access. Licensor shall maintain records in such a manner as to clearly document its compliance with and performance under this Agreement, and provide Licensee, the

Oregon Secretary of State, the federal government, and their duly authorized representatives access to

Licensor’s officers, agents, contractors, subcontractors, employees, facilities and records to:

9.9.1. Determine Licensor’s compliance with this Agreement,

9.9.2. Validate Licensor’s written security risk management plan, or

9.9.3. Gather or verify any additional information Licensee may require to meet any state or federal laws, rules, or orders, including those regarding Licensee Data.

9.9.4. Notice. Except as stated below for security logs, access to facilities, systems, and records under this section will be granted following reasonable notice to Licensor. Records include paper or electronic form, and related system components and tools (including hardware and software), required to perform examinations and audits, and to make excerpts and transcripts, including for data forensics.

9.9.5. System Security Logs. Licensor shall provide designated Licensee staff on-demand access to system security logs in report form for the Services, including user-level access logs for both

Licensee and Licensor users.

9.10. Record Retention. Licensor shall retain and keep accessible all records for a minimum of six years, or such longer period as may be required by applicable law, following termination of this Agreement, or until conclusion of any audit, controversy, or litigation arising out of or related to this Agreement, whichever data is later.

10. Licensor Access and Audit rights. Licensor’s audit rights in Section [##] of the TOS are modified to provide:

10.1. Any onsite audit will take place no more than once every 12 months, upon not fewer than 30 calendar days’ written notice, during normal business hours and in a manner that does not interfere unreasonably with Licensee’s operations. Licensee will provide Licensor or the independent auditor with information reasonably requested in furtherance of the verification; however, Licensor has no right of access to any locations, servers, computers, records, data, accounts, or other information protected by law from disclosure. As an alternative, Licensor can request Licensee complete a self-audit questionnaire.

10.2. If an agreed-upon compliance or audit report reveals that Licensee does not have sufficient subscriptions to meet its actual use, Licensee will order sufficient subscriptions at Licensee’s then-current prices, or at prices available to similar-sized government clients in good standing, whichever is lower. Licensee will not pay a penalty. Licensee may at its option purchase additional Services or subscriptions.

10.3. Each party will bear its own costs of any audit or compliance verification activity conducted pursuant to the TOS.

http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf

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11. Licensee Liabilities and Indemnification. Licensee’s liabilities under this Agreement and any Licensee obligation under the TOS to indemnify or hold Licensor harmless against claims brought by third parties against Licensor, including any payment of attorneys’ fees, are subject to the limitations of Article XI, Section 7 of the Oregon Constitution and the Oregon Tort Claims Act, ORS 30.260 through 30.300.

Licensee has no obligation to defend Licensor.

12. Licensor Indemnification and Limitation of Liability.

12.1. Licensor shall indemnify, defend, and hold Licensee, the State of Oregon, and its agents, officials and employees harmless from all third party claims, demands, suits, actions, proceedings, losses, liabilities, damages, awards, and costs (including reasonable attorneys’ fees and expenses), which may be brought or made against Licensee, the State of Oregon, or their agents, officials, or employees and arising out of or related to any of the following (each an indemnifiable loss):

12.1.1. Personal injury, death or tangible property damage caused by any alleged act, omission, error, fault, mistake or negligence of Licensor, its employees, agents, or representatives in connection with Licensor’s performance under or related to the Agreement.

12.1.2. Any willful or grossly negligent act or omission by Licensor that constitutes a material breach of the Agreement, including any breach of warranty.

12.1.3. Claims that any element of the Services or its use infringes or violates any patent, copyright, trademark, trade secret, or other proprietary right of a third party.

12.2. Licensee will timely notify Licensor in writing of any action, claim or demand of which Licensee becomes aware and which Licensee reasonably expects to result in an indemnifiable loss. Licensor’s indemnification obligations are not subject to any limitation of liability in the TOS. Licensor’s obligation under this section does not extend to any indemnifiable loss to the extent caused by: (i) the negligence or willful misconduct of Licensee, the State of Oregon, or their agents, officials or employees; or (ii) Licensee’s modification of Licensor’s software where the unmodified version of the software would not cause an indemnifiable loss.

12.3. Except for claims and expenses relating to Licensor’s indemnification obligations, defense obligations, breach of Licensee Data, or claims and penalties arising from Licensee’s obligations under laws and regulations in Section 9.1 (Compliance with Laws, Regulations, and Policies), Licensor’s liability under this Agreement is limited to one and one half times the maximum amount payable under this Agreement.

13. Defense of Claims. To the extent Licensor is required under this Agreement to defend Licensee against claims asserted by third parties, including under Section ## of the TOS, Licensee shall reasonably cooperate in good faith, at Licensor’s reasonable expense, in the defense of the claim, Licensor shall select counsel reasonably acceptable to the Oregon Attorney General to defend the claim, and Licensor shall bear all costs of counsel. The Oregon Attorney General’s acceptance of counsel may not be unreasonably withheld. Counsel must accept appointment as a Special Assistant Attorney General under ORS Chapter 180 before counsel may act in the name of, or represent the interests of, the State of Oregon, Licensee, its officers, employees or agents. Licensee may elect to assume its own defense with an attorney of its own choice and at its own expense any time Licensee determines important governmental interests are at stake. Licensee will promptly provide notice to Licensor of any claim that may result in an obligation on the part of Licensor to defend. Subject to these limitations, Licensor may defend a claim with counsel of its own choosing, on the condition that no settlement or compromise of any claim may occur without the consent of Licensee, which consent must not be unreasonably withheld.

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14. Governing Law; Jurisdiction; Venue. This Agreement is governed by, construed, and enforced in accordance with the laws of the State of Oregon, without giving effect to its conflict of law principles, and applicable federal law. Any action or suit brought by the parties relating to this Agreement must be brought and conducted exclusively in the Circuit Court of Marion County for the State of Oregon in Salem, Oregon;

provided, however, if a claim must be brought in a federal forum, then it must be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. LICENSOR

HEREBY CONSENTS TO THE PERSONAL JURISDICTION OF THESE COURTS, WAIVES ANY

OBJECTION TO VENUE IN THESE COURTS, AND WAIVES ANY CLAIM THAT THESE COURTS

ARE INCONVENIENT FORUMS. In no way may this section or any other term of this Agreement be construed as (i) a waiver by the State of Oregon of any form of defense or immunity, whether it is sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the

United States, or otherwise, or (ii) consent by the State of Oregon to the jurisdiction of any court.

15. Attorneys’ Fees. Neither party to this Agreement is entitled to obtain judgment from the other party for attorneys’ fees incurred in any litigation between the parties. Except as allowable under Section 11 (Licensee Liabilities and Indemnification) and Section 12 (Licensor Indemnification and Limitation of

Liability) of this Rider, neither party may obtain judgment from the other party for attorneys’ fees incurred in the defense of any claim asserted by a third party.

16. Dispute Resolution. Any dispute between the parties under this Agreement that is not resolved through informal discussions may be submitted to mediation upon the consent of both parties. If informal discussions or mediation are unsuccessful, either party may initiate litigation to resolve the dispute. The parties specifically disclaim any right to arbitration of disputes. Neither party waives its right to a jury trial or right to participate in class, collective, or representative claims.

17. Incorporation of Oregon Statutes. ORS 279B.220, 279B.230 and 279B.235 are incorporated into this Agreement by reference.

18. Termination.

18.1. Licensee’s Rights to Terminate.

18.1.1. Termination for Lack of Funding. Nothing in this Agreement may be construed to permit any violation of Article XI, Section 7 of the Oregon Constitution or any other law regulating liabilities or monetary obligations of the State of Oregon. Licensee’s payment for fees due after the last calendar day of the current State of Oregon biennium is contingent upon Licensee receiving funding, appropriations, limitations, allotments or other expenditure authority from the Oregon Legislative Assembly (including its Emergency Board) sufficient to allow Licensee, in the exercise of its reasonable administrative discretion, to continue to compensate Licensor. Licensee may immediately terminate this Agreement upon written notice if Licensee fails to receive funding, appropriations, limitations, allotments, or other expenditure authority as contemplated by Licensee’s budget or spending plan and Licensee determines, in its assessment and ranking of the policy objectives explicit or implicit in its budget or spending plan, that it is necessary to terminate this Agreement.

18.1.2. EIS Authorization. Licensee may terminate this Agreement if it does not receive authorization from the Enterprise Information Services (EIS) to continue the Services, or EIS authorization is withdrawn or modified in a way that performance of the Services under this Agreement is prohibited or no longer in the best interest of the State.

18.1.3. Licensee’s Right to Terminate for No Cause. Licensee may terminate this Agreement upon at least 30 calendar days’ prior written notice to Licensor.

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18.1.4. Licensee’s Right to Terminate for Cause. In addition to any other rights and remedies Licensee may have under this Agreement, Licensee may terminate this Agreement, in whole or in part, upon written notice to Licensor of Licensor’s default. Licensor will be in default under this Agreement if:

18.1.4.1. Licensor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings which are not dismissed within 60 calendar days of their commencement, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or

18.1.4.2. Licensor no longer holds a license or certificate that is required to provide the Services and Licensor has not obtained such license or certificate within 30 business days after delivery of Licensee’s notice or such longer period as Licensee may specify in such notice; or

18.1.4.3. Licensor commits any material breach of any covenant, warranty, obligation or certification under this Agreement, fails to provide or perform the Services in conformance with the specifications and warranties provided herein, or clearly manifests an intent not to perform future obligations under this Agreement, and such breach or default is not cured, or such manifestation of an intent not to perform is not corrected by reasonable written assurances of performance within 30 business days after delivery of Licensee’s notice or such longer period as Licensee may specify in such notice.

18.1.5. Licensee’s Right to Terminate for Services Issues. Licensee may terminate this Agreement upon at least 30 calendar days’ advance written notice if the Services are not in material conformance with the Service documentation, including if Licensor materially fails to meet service level agreements. A “material failure” includes consecutive or excessive failures.

18.2. Licensor’s Right to Terminate for Cause. Licensor may, subject to a minimum 60 calendar days’ prior written notice to Licensee, terminate this Agreement under Exhibit A, Section ##.

18.3. Mutual Termination. The parties may agree to terminate this Agreement upon at least 30 calendar days’ prior written agreement.

19. Independent Contractor. Licensor is at all times an independent contractor and is not an agent, employee, or representative of Licensee. Licensor has no right or authority to incur or create any obligation for or legally bind Licensee in any way. Licensor is not an "officer," "employee" or "agent" of Licensee or any other agency, office, or department of the State of Oregon, as those terms are used in ORS 30.265, and

Licensor shall make no representations to third parties to the contrary. Neither party shall make any statements, representations, or commitments of any kind or to take any action binding on the other except as provided for in the Contract or authorized in writing by the party to be bound.

20. Publicity. Licensor may disclose the form and existence of this Agreement in advertising, press releases or other materials distributed to prospective customers, but shall not otherwise attempt to obtain publicity from its association with Licensee or the State of Oregon, whether or not such disclosure, publicity or association implies an endorsement by Licensee or the State of Oregon of Licensor’s products and services, without the prior written consent of Licensee.

21. Counterparts. This Rider may be executed in two or more counterparts, by facsimile or otherwise, each of which is an original, and all of which together constitute one and the same instrument, notwithstanding that all parties are not signatories to the same counterpart.

22. Amendments. This Agreement may be amended, modified, or supplemented only by a written amendment that, if required by applicable law, has been approved according to applicable laws, rules and

RFQ: RAWS for Two Training Centers Page 18 of 27 regulations, and for legal sufficiency by DOJ. No amendment will be effective until all requisite signatures and approvals are obtained from both parties.

23. No Third Party Beneficiaries. Licensee and Licensor are the only parties to this Agreement and are the only parties entitled to enforce its terms.

24. Subcontractors. Licensor shall disclose its subcontractors under this Agreement, and ensure all subcontractors providing services related to this Agreement comply with its applicable provisions.

25. Survival. The provisions of this Rider that by their nature survive termination do so survive.

26. Severability. The parties agree that if any term or provision of this Agreement is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions will not be affected, and the rights and obligations of the parties will be construed and enforced as if this Agreement did not contain the particular term or provision held to be invalid.

27. Non-Discrimination. If the anticipated total value of the Services to be provided under this Agreement is

$150,000 or more, Licensor certifies that it has a written policy and practice that meets the requirements described in ORS 279A.112 for preventing sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. Licensor agrees, as a material condition, to maintain such policy and practice in force during the term of this Agreement.

28. Pay Equity. As required by ORS 279B.235, Licensor shall comply with ORS 652.220 and not unlawfully discriminate against any of its employees in the payment of wages or other compensation for work of comparable character on the basis of an employee’s membership in a protected class. “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. Licensor’s compliance with this section is a material term of this Agreement, and Licensor’s failure to comply constitutes a breach entitling Licensee to terminate this

Agreement for cause.

28.1. As required by ORS 279B.235, Licensor may not prohibit any of its employees from discussing the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person. Licensor shall not retaliate against an employee who discusses the employee’s rate of wage, salary, benefits, or other compensation with another employee or another person.

29. NOTICES. Except as otherwise expressly provided in this Agreement, any communications between the parties or notices to be given under this Agreement must be given in writing to Licensor at the address or number set forth in Section 31, and to Licensee at the address or number set forth in Section 31, or to such other addresses or numbers as either party may hereafter indicate pursuant to this Agreement.

1.1.1. Any communication or notice delivered by United States Postal Service, first class mail postage prepaid, will be deemed given five calendar days after mailing.

1.1.2. Any communication or notice delivered by facsimile will be deemed given when the transmitting machine generates receipt of the transmission. To be effective against Licensee, such facsimile transmission must be confirmed by telephone notice to the Licensee Authorized Representative.

1.1.3. Any communication or notice delivered by email will be deemed given when the recipient responds with a receipt, which may be auto-generated. To be effective against Licensee, such email transmission must be confirmed by telephone notice to the Licensee Authorized Representative (or delegate).

1.1.4. Any communication or notice by personal delivery will be deemed given when actually received by the appropriate Authorized Representative (or delegate).

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30. Tax Compliance. By executing this Rider, the undersigned certifies under penalty of perjury that, to the best of the individual’s knowledge, Licensor has complied with the tax laws of the State of Oregon and the applicable tax laws of any political subdivision of this state, and that Licensor has no undisclosed liquidated and delinquent debt owed to this state or any political subdivision. Licensor shall, for the duration of this Agreement and any extensions, comply with all tax laws of this state and all applicable tax laws of any political subdivision of this state. For the purposes of this section, “tax laws” includes: (i) All tax laws of this state, including but not limited to ORS 320.005 to 320.150 and 403.200 to 403.250 and ORS chapters 118, 314, 316, 317, 318, 321 and 323 and local taxes administered by the Department of Revenue; (ii) Any tax provisions imposed by a political subdivision of this state that apply to Licensor, to Licensor’s property, operations, receipts, or income, or to Licensor’s performance of or compensation for any work performed by Licensor; (iii) Any tax provisions imposed by a political subdivision of this state that apply to Licensor, or to goods, services, or property, whether tangible or intangible, provided by Licensor; and (iv) Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

30.1. This Agreement will be reported to the Oregon Department of Revenue. The Department of

Revenue may take any and all actions permitted by law relative to the collection of taxes and debt due to the State of Oregon or a political subdivision, including (i) garnishing Licensor’s compensation under this Agreement, or (ii) exercising a right of setoff against Licensor’s compensation relating to this

Agreement for any amounts that may be due and unpaid to the State of Oregon or its political subdivisions for which the Department of Revenue collects debts.

31. LICENSOR, BY EXECUTION OF THIS AGREEMENT, HEREBY ACKNOWLEDGES THAT IT

HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS

TERMS AND CONDITIONS.

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Licensor:

Signature & Date

Printed Name and Title of

Authorized

Representative

Services Manager or Other Point of Contact:

Printed Name and Title

Mailing Address

Physical Address

Telephone

Email

Licensee: State of Oregon acting by and through its Oregon…