RFP Document.pdf

Rev. 2023-02-13

STATE OF SOUTH DAKOTA

OFFICE OF PROCUREMENT MANAGEMENT

523 EAST CAPITOL AVENUE

PIERRE, SOUTH DAKOTA 57501-3182

Child Care Workforce Study PROPOSALS ARE DUE NO LATER THAN 06.08.2023 by 5:00 p.m. (CST)

RFP #8740 BUYER:

Division of Economic Assistance POC: Kirsten Smart

Kirsten.Smart@state.sd.us

READ CAREFULLY

FIRM NAME: AUTHORIZED SIGNATURE:

(Digital Signature allowed)

ADDRESS: TYPE OR PRINT NAME:

CITY/STATE: TELEPHONE NO:

ZIP (9 DIGIT): FAX NO:

FEDERAL TAX ID#: E-MAIL:

PRIMARY CONTACT INFORMATION

CONTACT NAME: TELEPHONE NO:

FAX NO: E-MAIL:

mailto:Kirsten.Smart@state.sd.us

1.0 GENERAL INFORMATION

1.1 PURPOSE OF REQUEST FOR PROPOSAL (RFP)

The South Dakota Department of Social Services (DSS) is initiating this Request for Proposals to solicit proposals from firms interested in conducting a study to help the state of South Dakota better understand the challenges and opportunities facing the child care workforce and identify strategies that may be utilized by businesses and communities to support, recruit, and retain child care employees.

A comprehensive picture of the current child care workforce in South Dakota does not currently exist; however, it is necessary to guide the ongoing efforts to improve the quantity, quality, and retention of the workforce. The workforce study will provide data that will be used to:

• Inform, support, and expand recognition for the childcare workforce among advocates, the business community, philanthropy, state leaders, and the general public.

• Enhance understanding of and support for the workforce in the child care field.

• Enhance understanding of the challenges and opportunities facing the workforce in order to identify strategies that address issues such as low compensation, turnover, and access to training and education.

• Provide baseline data from which to assess future progress/success and provide recommendations for how the data can continue to be collected in the future.

1.2 ISSUING OFFICE AND RFP REFERENCE NUMBER

The Division of Economic Assistance is the issuing office for this document and all subsequent addenda relating to it, on behalf of the State of South Dakota, Department of Social Services.

The reference number for the transaction is RFP #8740. Refer to this number on all proposals, correspondence, and documentation relating to the RFP.

Please refer to the Department of Social Services website link http://dss.sd.gov/keyresources/rfp.aspx for the RFP, any related questions/answers, changes to schedule of activities, amendments, etc.

1.3 LETTER OF INTENT

All interested offerors are requested to submit a non-binding Letter of Intent to respond to this RFP. While preferred, a Letter of Intent is not mandatory to submit a proposal. The letter of intent must be received by email in the Department of Social Services by no later than 5/9/2023 and must be addressed to Kirsten.Smart@state.sd.us. Place the following, exactly as written, in the subject line of your email: Letter of Intent for RFP #8740. Be sure to reference the RFP number in any attached letter or document.

1.4 SCHEDULE OF ACTIVITIES (SUBJECT TO CHANGE)

RFP Publication 4/25/2023 Letter of Intent to Respond Due 5/9/2023 Deadline for Submission of Written Inquiries 5/9/2023 Responses to Offeror Questions 5/23/2023 Request for SFTP folder 6/6/2023 Proposal Submission 6/8/2023 Oral Presentation/discussion (if required) TBD, if required Anticipated Award Decision/Contract Negotiation 7/13/2023 http://dss.sd.gov/keyresources/rfp.aspx

1.5 SUBMITTING YOUR PROPOSAL

All proposals must be completed and received by the Division of Economic Assistance by the date and time indicated in the Schedule of Activities.

Proposals received after the deadline will be late and ineligible for consideration.

Proposals must be submitted as PDF’s via Secured File Transfer Protocol (SFTP). Offerors must request an SFTP folder no later than 6/6/2023, by emailing Kirsten Smart at the email indicated on page one.

The subject line should be “RFP #8740 SFTP Request”. The email should contain the name and the email of the person who will be responsible for uploading the document(s).

Please note, offeror will need to work with their own technical support staff to set up an SFTP compatible software on offeror’s end. While the State of South Dakota can answer questions, State of South Dakota is not responsible for the software required.

All proposals may be signed in ink or digitally by an officer of the offeror legally authorized to bind the offeror to the proposal and sealed in the form intended by the respondent. Proposals that are not properly signed may be rejected.

No proposal may be accepted from, or any contract or purchase order awarded to any person, firm or corporation that is in arrears upon any obligations to the State of South Dakota, or that otherwise may be deemed irresponsible or unreliable by the State of South Dakota.

1.6 CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND

VOLUNTARY EXCLUSION – LOWER TIER COVERED TRANSACTIONS

By signing and submitting this proposal, the offeror certifies that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation, by any Federal department or agency, from transactions involving the use of Federal funds. Where the offeror is unable to certify to any of the statements in this certification, the bidder shall attach an explanation to their offer.

1.7 NON-DISCRIMINATION STATEMENT

The State of South Dakota requires that all contractors, vendors, and suppliers doing business with any State agency, department, or institution, provide a statement of non-discrimination. By signing and submitting their proposal, the offeror certifies they do not discriminate in their employment practices with regard to race, color, creed, religion, age, sex, ancestry, national origin, or disability.

1.8 RESTRICTION OF BOYCOTT OF ISRAEL

For contractors, vendors, suppliers, or subcontractors with five (5) or more employees who enter into a contract with the State of South Dakota that involves the expenditure of one hundred thousand dollars ($100,000) or more, by submitting a response to this solicitation or agreeing to contract with the State, the bidder or offeror certifies and agrees that the following information is correct:

The bidder or offeror, in preparing its response or offer or in considering proposals submitted from qualified, potential vendors, suppliers, and subcontractors, or in the solicitation, selection, or commercial treatment of any vendor, supplier, or subcontractor, has not refused to transact business activities, has not terminated business activities, and has not taken other similar actions intended to limit its commercial relations, related to the subject matter of the bid or offer, with a person or entity on the basis of Israeli national origin, or residence or incorporation in Israel or its territories, with the specific intent to accomplish a boycott or divestment of Israel in a discriminatory manner. It is understood and agreed that, if this certification is false, such false certification will constitute grounds for the State to reject the bid or response submitted by the bidder or offeror on this project and terminate any contract awarded based on the bid or response. The successful bidder or offeror further agrees to provide immediate written notice to the contracting executive branch agency if during the term of the contract it no longer complies with this certification and agrees such noncompliance may be grounds for contract termination.

1.9 CERTIFICATION RELATING TO PROHIBITED ENTITY

For contractors, vendors, suppliers, or subcontractors who enter into a contract with the State of South Dakota by submitting a response to this solicitation or agreeing to contract with the State, the bidder or offeror certifies and agrees that the following information is correct:

The bidder or offeror, in preparing its response or offer or in considering proposals submitted from qualified, potential vendors, suppliers, and subcontractors, or in the solicitation, selection, or commercial treatment of any vendor, supplier, or subcontractor, is not an entity, regardless of its principal place of business, that is ultimately owned or controlled, directly or indirectly, by a foreign national, a foreign parent entity, or foreign government from China, Iran, North Korea, Russia, Cuba, or Venezuela, as defined by South Dakota Executive Order 2023-02. It is understood and agreed that, if this certification is false, such false certification will constitute grounds for the State to reject the bid or response submitted by the bidder or offeror on this project and terminate any contract awarded based on the bid or response. The successful bidder or offeror further agrees to provide immediate written notice to the contracting executive branch agency if during the term of the contract it no longer complies with this certification and agrees such noncompliance may be grounds for contract termination.

1.10 MODIFICATION OR WITHDRAWAL OF PROPOSALS

Proposals may be modified or withdrawn by the offeror prior to the established due date and time.

No oral, telephonic, telegraphic, or facsimile responses or modifications to informal, formal bids, or Request for Proposals will be considered.

1.11 OFFEROR INQUIRIES

Offerors may email inquiries concerning this RFP to obtain clarification of requirements. No inquiries will be accepted after 5/9/2023. Email inquiries must be sent to Kirsten.Smart@state.sd.us with the following wording, exactly as written, in the subject line: RFP #8740 Questions.

The Department of Social Services (DSS) will respond to offerors’ inquiries by posting offeror aggregated questions and Department responses on the DSS website at http://dss.sd.gov/keyresources/rfp.aspx no later than 5/23/2023. For expediency, DSS may combine similar questions. Offerors may not rely on any other statements, either of a written or oral nature, that alter any specification or other term or condition of this RFP. Offerors will be notified in the same manner as indicated above regarding any modifications to this RFP.

http://dss.sd.gov/keyresources/rfp.aspx

1.12 PROPRIETARY INFORMATION

The proposal of the successful offeror(s) becomes public information.

Proprietary information can be protected under limited circumstances such as client lists and non-public financial statements. An entire proposal may not be marked as proprietary. Offerors must clearly identify in the Executive Summary and mark in the body of the proposal any specific proprietary information they are requesting to be protected. The Executive Summary must contain specific justification explaining why the information is to be protected. Proposals may be reviewed and evaluated by any person at the discretion of the State. All materials submitted become the property of the State of South Dakota and may be returned only at the State's option.

Offerors may submit a redacted copy of their proposal when they respond though this is optional.

1.13 LENGTH OF CONTRACT

The contract will begin 8/1/2023 and end no later than 9/30/2024. An extension period will not be considered.

1.14 GOVERNING LAW

Venue for any and all legal action regarding or arising out of the transaction covered herein shall be solely in Hughes County, State of South Dakota. The laws of South Dakota shall govern this transaction.

1.15 DISCUSSIONS WITH OFFERORS (ORAL PRESENTATION/NEGOTIATIONS)

An oral presentation by an offeror to clarify a proposal may be required at the sole discretion of the State. However, the State may award a contract based on the initial proposals received without discussion with the offeror. If oral presentations are required, they will be scheduled after the submission of proposals. Oral presentations will be made at the offeror’s expense.

This process is a Request for Proposal/Competitive Negotiation process. Each Proposal shall be evaluated, and each respondent shall be available for negotiation meetings at the State’s request.

The State reserves the right to negotiate on any and/or all components of every proposal submitted. From the time the proposals are submitted until the formal award of a contract, each proposal is considered a working document and as such, will be kept confidential. The negotiation discussions will also be held as confidential until such time as the award is completed.

2.0 STANDARD AGREEMENT TERMS AND CONDITIONS

Any contract or agreement resulting from this RFP will include, at minimum, the State’s standard terms and conditions as seen in Attachment A.

The offeror should indicate in their response any issues they have with any specific contract terms. If the offeror does not indicate any contract term issues, then the State will assume the terms are acceptable.

3.0 SCOPE OF WORK

3.1 Objectives

Conduct a comprehensive study on South Dakota’s child care workforce – of both state registered and non-state registered child care providers – with the goal of capturing the data to inform local communities and businesses as they develop targeted strategies to improve workforce recruitment and retention.

3.1.1 The study must collect and summarize South Dakota’s current child care workforce demographics (e.g., age, gender, race and ethnicity, education, experience, tenure, compensation).

3.1.2 The study must include by geographic estimates of the size of the State’s childcare workforce by position, including directors, managers, lead staff, direct service staff and other support staff.

3.1.3 The study must assess the state’s current workforce capacity vs. forecasted demand.

3.1.4 The study must examine barriers and facilitators including, but not limited to, pay and benefits; training and supervision; safety and morale; and other factors that influence entry into the workforce and retention of the workforce.

3.1.5 The study must include a pay equity and comparable worth analysis that compares eligible childcare service provider positions to jobs with similar complexity, difficulty, and educational and skill requirements in the public and private sectors that are essential to South Dakota.

3.1.6 The study must explore the economic impacts of childcare workforce shortages, both current and forecasted, on the State of South Dakota’s economy.

3.1.7 In conducting the study, the firm must interview, survey and consult with childcare program employees, with a representative sample of South Dakota’s population by demographics and geographic areas.

3.1.8 The study must include South Dakota case studies of successful strategies utilized by businesses and communities to support, recruit, and retain child care employees, which could be replicated.

3.2 Technical Proposal

The Technical Proposal must contain a comprehensive description of services including the following elements:

3.2.1 Study Approach/Methodology: Include a complete description of the offeror’s proposed approach and methodology for the study. This section should convey offeror’s understanding of the proposed study.

3.2.2 Work Plan: Include all study requirements and the proposed tasks, services, activities, etc. necessary to accomplish the scope of the project defined in this RFP. This section of the technical proposal must contain sufficient detail to convey to members of the evaluation team the offeror’s knowledge of the subjects and skills necessary to successfully complete the project. Include any required involvement of DSS staff. The offeror may also present any creative approaches that might be appropriate and may provide any pertinent supporting documentation.

3.2.3 Schedule: Include a schedule indicating when the elements of the work will be completed. The schedule must ensure that any deliverables requested are met.

3.3 Deliverables & Project Management

3.3.1 Fully describe deliverables to be submitted under the proposed contract. Deliverables must support the requirements set forth in the Objectives. Data provided to DSS must be able to be broken down by geographic regions and/or the county level.

3.3.2 Collect data from multiple quantitative and qualitative sources to conduct the Objectives, including a literature review that will focus on key data gaps that cannot be closed with extant data sources or for which primary data collection is not feasible.

3.3.3 Review existing studies and reports that may have information that can be used to support the study Objectives including, but not limited to, wages by positions, including directors, managers, lead staff, direct service staff and other support staff.

3.3.4 Coordinate project management and communications across study Objectives. This includes facilitating a kick-off meeting to confirm key dates, roles/responsibilities, feedback and points of contacts. Draft study project plan to meet Objectives due to DSS by [insert specific date].

3.3.5 Submit monthly progress reports and monthly invoices. The progress report will summarize major accomplishments, work planned for the next month, deliverables completed, and any issues encountered and how to solve.

3.3.6 A first written draft of the study must be submitted to DSS by 8/1/2024.

3.3.7 The final written study (in an editable format), a summary PowerPoint with findings, data visualizations and recommendations and up to three infographic one-page briefs must be submitted to DSS, including policy or other recommendations, by 9/1/2024.

4.0 PROPOSAL REQUIREMENTS AND COMPANY QUALIFICATIONS

4.1 Provide the following information related to at least three previous and current service/contracts performed by the offeror’s organization which are similar to the requirements of this RFP. Provide this information as well for any service/contract that has been terminated, expired or not renewed in the past three years:

a. Name, address and telephone number of client/contracting agency and a representative of that agency who may be contacted for verification of all information submitted;

b. Dates of the service/contract; and

c. A brief, written description of the specific prior services performed and requirements thereof.

4.2 The offeror must submit information that demonstrates their availability and familiarity with the locale in which the project (s) are to be implemented.

4.3 The offeror must detail examples that document their ability and proven history in handling special project constraints.

4.4 The offeror must describe their proposed project management techniques.

4.4.1 The offeror must detail staff qualification and experience who will be assigned to the project, indicating the responsibilities and qualifications of such personnel. Provide resumes for the named staff, which include information on the individual’s particular skills related to this project, education, experience, significant accomplishments and any other pertinent information.

4.5 The offeror is cautioned that it is the offeror's sole responsibility to submit information related to the evaluation categories and that the State of South Dakota is under no obligation to solicit such information if it is not included with the proposal. The offeror's failure to submit such information may cause an adverse impact on the evaluation of the proposal.

4.6 Offeror's Contacts: Offerors and their agents (including subcontractors, employees, consultants, or anyone else acting on their behalf) must direct all of their questions or comments regarding the RFP, the evaluation, etc. to the buyer of record indicated on the first page of this RFP. Offerors and their agents may not contact any state employee other than the buyer of record regarding any of these matters during the solicitation and evaluation process. Inappropriate contacts are grounds for suspension and/or exclusion from specific procurements. Offerors and their agents who have questions regarding this matter should contact the buyer of record.

4.7 The offeror may be required to submit a copy of their most recent independently audited financial statements.

4.8 If an offeror’s proposal is not accepted by the State, the proposal will not be reviewed/evaluated.

5.0 PROPOSAL RESPONSE FORMAT

5.1 Only a PDF copy shall be submitted.

5.1.1 As outlined in section 1.5 “SUBMITTING YOUR PROPOSAL” proposals shall only be submitted electronically via SFTP.

5.1.2 The proposal should be page numbered and should have an index and/or a table of contents referencing the appropriate page number.

5.1.3 5.2 All proposals must be organized and have a separator page between each the following headings. The separator page should have the heading names on it.

5.1.3.1 RFP Form. The State’s Request for Proposal form completed and signed.

5.1.3.2 Executive Summary. The one or two page executive summary is to briefly describe the offeror's proposal. This summary should highlight the major features of the proposal. It must indicate any requirements that cannot be met by the offeror. The reader should be able to determine the essence of the proposal by reading the executive summary. Proprietary information requests should be identified in this section.

5.1.3.3 Detailed Response. This section should constitute the major portion of the proposal and must contain at least the following information:

5.1.3.3.1 A complete narrative of the offeror's assessment of the work to be performed, the offeror’s ability and approach, and the resources necessary to fulfill the requirements. This should demonstrate the offeror's understanding of the desired overall performance expectations.

5.1.3.3.2 A specific point-by-point response, in the order listed, to each requirement in the RFP as detailed in Sections 3 and 4. The response should identify each requirement being addressed as enumerated in the RFP.

5.1.3.3.3 A clear description of any options or alternatives proposed.

5.1.4 Cost Proposal. Cost will be evaluated independently from the technical proposal.

Offerors may submit multiple cost proposals. All costs related to the provision of the required services must be included in each cost proposal offered.

See section 7.0 for more information related to the cost proposal.

6.0 PROPOSAL EVALUATION AND AWARD PROCESS

6.1 After determining that a proposal satisfies the mandatory requirements stated in the Request for Proposal, the evaluator(s) shall use subjective judgment in conducting a comparative assessment of the proposal by considering each of the following criteria listed in order of importance:

6.1.1 Specialized expertise, capabilities, and technical competence as demonstrated by the proposed approach and methodology to meet the project requirements;

6.1.2 Resources available to perform the work, including any specialized services, within the specified time limits for the project;

6.1.3 Record of past performance, including price and cost data from previous projects, quality of work, ability to meet schedules, cost control, and contract administration;

6.1.4 Availability to the project locale;

6.1.5 Proposed project management techniques;

6.1.6 Cost proposal;

6.1.7 Familiarity with the project locale; and

6.1.8 Ability and proven history in handling special project constraints.

6.2 Experience and reliability of the offeror's organization are considered subjectively in the evaluation process. Therefore, the offeror is advised to submit any information which documents successful and reliable experience in past performances, especially those performances related to the requirements of this RFP.

6.3 The qualifications of the personnel proposed by the offeror to perform the requirements of this RFP, whether from the offeror's organization or from a proposed subcontractor, will be subjectively evaluated. Therefore, the offeror should submit detailed information related to the experience and qualifications, including education and training, of proposed personnel.

6.4 The State reserves the right to reject any or all proposals, waive technicalities, and make award(s) as deemed to be in the best interest of the State of South Dakota.

6.5 Award: The requesting agency and the highest ranked offeror shall mutually discuss and refine the scope of services for the project and shall negotiate terms, including compensation and performance schedule.

6.5.1 If the agency and the highest ranked offeror are unable for any reason to negotiate a contract at a compensation level that is reasonable and fair to the agency, the agency shall, either orally or in writing, terminate negotiations with the contractor. The agency may then negotiate with the next highest ranked contractor.

6.5.2 The negotiation process may continue through successive offerors, according to agency ranking, until an agreement is reached or the agency terminates the contracting process.

6.5.3 Only the response of the vendor awarded work becomes public. Responses to work orders for vendors not selected and the evaluation criteria and scoring for all proposals are not public. Vendors may submit a redacted copy with the full proposal as stated in Section 1.12 Proprietary Information. SDCL 1-27-1.5 and See SDCL 1-27-1.5 and 1-27- 1.6.

7.0 COST PROPOSAL

The cost proposal must address the Scope of Work as outlined in Section 3.0.

If there are different hourly rates for different activities, please provide a breakdown of the rate and the expected hours.

The cost proposal must have an expected total cost.

DSS Purchase Order #:24SC08 _ _ _ _ Consultant Contract #: 24-0800- _ _ _

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STATE OF SOUTH DAKOTA

DEPARTMENT OF SOCIAL SERVICES

DIVISION OF ECONOMIC ASSISTANCE

Consultant Contract For Consultant Services

Between

State of South Dakota Department of Social Services

DIVISION OF ECONOMIC ASSISTANCE

700 Governors Drive Pierre, SD 57501-2291

Referred to as Consultant Referred to as State

The State hereby enters into a contract (the “Agreement” hereinafter) for consultant services with the Consultant.

While performing services hereunder, Consultant is an independent contractor and not an officer, agent, or employee of the State of South Dakota.

1. CONSULTANT’S South Dakota Vendor Number is . Upon execution of agreement, Consultant will provide the State with Consultant’s Employer Identification Number or Federal Tax Identification Number.

2. PERIOD OF PERFORMANCE̘:

A. This Agreement shall be effective as of August 1, 2023 and shall end on September 30, 2024, unless sooner terminated pursuant to the terms hereof.

B. Agreement is the result of request for proposal process, RFP #8740

3. PROVISIONS:

A. The Purpose of this Consultant contract is:

1. The South Dakota Department of Social Services (DSS) is initiating this Request for Proposals to solicit proposals from firms interested in conducting a study to help the state of South Dakota better understand the challenges and opportunities facing the childcare workforce and identify strategies that may be utilized by businesses and communities to support, recruit, and retain childcare employees.

2. Does this Agreement involve Protected Health Information (PHI)? YES ( ) NO ( X ) If PHI is involved, a Business Associate Agreement must be attached and is fully incorporated herein as part of the Agreement (refer to attachment) .

3. The Consultant WILL ( ) WILL NOT ( ) use state equipment, supplies or facilities.

4. If WILL is indicated above, the following state equipment, supplies, or facilities will be used.

B. The Consultant agrees to perform the following services (add an attachment if needed):

1. Conduct a comprehensive study on South Dakota’s childcare workforce – of both state registered, and non-state registered childcare providers – with the goal of capturing the data to inform local communities and businesses as they develop targeted strategies to improve workforce recruitment and retention.

C. The State agrees to:

1.

ATTACHMENT A

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2. Make payment for services upon satisfactory completion of services and receipt of bill. Payment will be in accordance with SDCL 5-26-2.

3. Will the State pay Consultant expenses as a separate item?

YES ( ) NO ( X )

If YES, expenses submitted will be reimbursed as identified in this Agreement.

D. The TOTAL CONTRACT AMOUNT will not exceed $ .

4. BILLING:

Consultant agrees to submit a bill for services within (30) days following the month in which services were provided. Consultant will prepare and submit a monthly bill for services. Consultant agrees to submit a final bill within 30 days of the Agreement end date to receive payment for completed services. If a final bill cannot be submitted in 30 days, then a written request for extension of time and explanation must be provided to the State.

5. TECHNICAL ASSISTANCE:

The State agrees to provide technical assistance regarding Department of Social Services rules, regulations and policies to the Consultant and to assist in the correction of problem areas identified by the State’s monitoring activities.

6. LICENSING AND STANDARD COMPLIANCE:

The Consultant agrees to comply in full with all licensing and other standards required by Federal, State, County, City or Tribal statute, regulation or ordinance in which the service and/or care is provided for the duration of this Agreement. The Consultant will maintain effective internal controls in managing the federal award. Liability resulting from noncompliance with licensing and other standards required by Federal, State, County, City or Tribal statute, regulation or ordinance or through the Consultant’s failure to ensure the safety of all individuals served is assumed entirely by the Consultant.

7. ASSURANCE REQUIREMENTS:

(For Federally funded contracts only). The Consultant agrees to abide by all applicable provisions of the following: Byrd Anti Lobbying Amendment (31 USC 1352), Executive orders 12549 and 12689 (Debarment and Suspension), Drug-Free Workplace, Executive Order 11246 Equal Employment Opportunity, Title VI of the Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968, Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, Drug Abuse Office and Treatment Act of 1972, Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970, Age Discrimination Act of 1975, Americans with Disabilities Act of 1990, Pro-Children Act of 1994, Hatch Act, Health Insurance Portability and Accountability Act (HIPAA) of 1996 as amended, Clean Air Act, Federal Water Pollution Control Act, Charitable Choice Provisions and Regulations, Equal Treatment for Faith-Based Religions at Title 28 Code of Federal Regulations Part 38, the Violence Against Women Reauthorization Act of 2013 and American Recovery and Reinvestment Act of 2009, as applicable; and any other nondiscrimination provision in the specific statute(s) under which application for Federal assistance is being made; and the requirements of any other nondiscrimination statute(s) which may apply to the award.

8. COMPLIANCE WITH EXECUTIVE ORDER 2020-01:

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By entering into this Agreement, Consultant certifies and agrees that it has not refused to transact business activities, it has not terminated business activities, and it has not taken other similar actions intended to limit its commercial relations, related to the subject matter of this Agreement, with a person or entity that is either the State of Israel, or a company doing business in or with Israel or authorized by, licensed by, or organized under the laws of the State of Israel to do business, or doing business in the State of Israel, with the specific intent to accomplish a boycott of divestment of Israel in a discriminatory manner. It is understood and agreed that, if this certification is false, such false certification will constitute grounds for the State to terminate this Agreement. Consultant further agrees to provide immediate written notice to the State if during the term of this Agreement it no longer complies with this certification and agrees such noncompliance may be grounds for termination of this Agreement.

9. COMPLIANCE WITH EXECUTIVE ORDER 2023-02:

Contractor certifies and agrees that the following information is correct:

In preparing its response or offer or in considering proposals submitted from qualified, potential vendors, suppliers, and subcontractors, or in the solicitation, selection, or commercial treatment of any vendor, supplier, or subcontractor, Contractor is not an entity, regardless of its principal place of business, that is ultimately owned or controlled, directly or indirectly, by a foreign national, a foreign parent entity, or foreign government from China, Iran, North Korea, Russia, Cuba, or Venezuela, as defined by South Dakota Executive Order 2023-02.

Contractor further agrees that, if this certification is false, such false certification will constitute grounds for the State to terminate this Agreement. Contractor further agrees to provide immediate written notice to the State if during the term of this Agreement it no longer complies with this certification and agrees such noncompliance may be grounds for termination of this Agreement.

10. RETENTION AND INSPECTION OF RECORDS:

The Consultant agrees to maintain or supervise the maintenance of records necessary for the proper and efficient operation of the program, including records and documents regarding applications, determination of eligibility (when applicable), the provision of services, administrative costs, statistical, fiscal, other records, and information necessary for reporting and accountability required by the State. The Consultant shall retain such records for a period of six years from the date of submission of the final expenditure report.

If such records are under pending audit, the Consultant agrees to hold such records for a longer period upon notification from the State. The State, through any authorized representative, will have access to and the right to examine and copy all records, books, papers or documents related to services rendered under this Agreement. State Proprietary Information retained in Consultant’s secondary and backup systems will remain fully subject to the obligations of confidentiality stated herein until such information is erased or destroyed in accordance with Consultant’s established record retention policies.

All payments to the Consultant by the State are subject to site review and audit as prescribed and carried out by the State. Any over payment of this Agreement shall be returned to the State within thirty days after written notification to the Consultant.

11. WORK PRODUCT:

Consultant hereby acknowledges and agrees that all reports, plans, specifications, technical data, drawings, software system programs and documentation, procedures, files, operating instructions and procedures, source code(s) and documentation, including those necessary to upgrade and maintain the software program, State Proprietary Information, as defined in the Confidentiality of Information paragraph herein, state data, end user data, Protected Health Information as defined in 45 CFR 160.103, and all information contained therein provided to the State by the Consultant in connection with its performance of service under this Agreement shall belong to and is the property of the State and will not be used in any way by the Consultant without the written consent of the State.

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Paper, reports, forms, software programs, source code(s) and other materials which are a part of the work under this Agreement will not be copyrighted without written approval of the State. In the unlikely event that any copyright does not fully belong to the State, the State nonetheless reserves a royalty-free, non-exclusive, and irrevocable license to reproduce, publish, and otherwise use, and to authorize others to use, any such work for government purposes.

Consultant agrees to return all information received from the State to State’s custody upon the end of the term of this Agreement, unless otherwise agreed in a writing signed by both parties.

12. TERMINATION:

This Agreement may be terminated by either party hereto upon thirty (30) days written notice. In the event the Consultant breaches any of the terms or conditions hereof, this Agreement may be terminated by the State at any time, with or without notice. Upon termination of this Agreement, all accounts and payments shall be processed according to financial arrangements set forth herein for services rendered to date of termination. If termination for breach is effected by the State, any payments due to Consultant at the time of termination may be adjusted to cover any additonal costs to the State as a result of Consultant’s breach. Upon termination the State may take over the work and may award another party a contract to complete the work contemplated by this Agreement. If the State terminates for a breach by Consultant and it is determined that the Consultant was not at fault, then Consultant shall be paid for eligible services rendered and expenses incurred up to the date of termination.

Any terms of this Agreement that would, by their nature or through the express terms of this Agreement, survive the expiration or termination of this Agreement shall so survive, including by not limited to the terms of sections 10, 11, 15, 23, 24 and 27.

13. FUNDING:

This Agreement depends upon the continued availability of appropriated funds and expenditure authority from the Legislature for this purpose. If for any reason the Legislature fails to appropriate funds or grant expenditure authority, or funds become unavailable by operation of the law or federal funds reduction, this Agreement will be terminated by the State upon five day written notice. Consultant agrees that termination for any of these reasons is not a default by the State nor does it give rise to a claim against the State or any officer, agent or employee of the State and Consultant waives any claim against the same.

14. ASSIGNMENT AND AMENDMENTS:

This Agreement may not be assigned without the express prior written consent of the State. This Agreement may not be amended except in writing, which writing shall be expressly identified as a part hereof, and be signed by an authorized representative of each of the parties hereto.

15. CONTROLLING LAW:

This Agreement shall be governed by and construed in accordance with the laws of the State of South Dakota, without regard to any conflicts of law principles, decisional law, or statutory provision which would require or permit the application of another jurisdiction’s substantive law. Venue for any lawsuit pertaining to or affecting this Agreement shall be resolved in the Circuit Court, Sixth Judicial Circuit, Hughes County, South Dakota.

16. THIRD PARTY BENEFICIARIES:

This agreement is intended to govern only the rights and interests of the parties named herein. It is not intended to create, does not and may not be relied upon to create, any rights, substantive or procedural, enforceable at law in any matters, civil or criminal.

17. SUPERSESSION:

All prior discussions, communications and representations concerning the subject matter of this Agreement are superseded by the terms of this Agreement, and except as specifically provided herein, this Agreement constitutes the entire agreement with respect to the subject matter hereof.

18. IT STANDARDS:

Any service, software or hardware provided under this Agreement will comply with state standards which can be found at http://bit.sd.gov/standards/.

http://bit.sd.gov/standards/

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19. SEVERABILITY:

In the event that any provision of this Agreement shall be held unenforceable or invalid by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement, which shall remain in full force and effect.

20. NOTICE:

Any notice or other communication required under this Agreement shall be in writing and sent to the address set forth above. Notices shall be given by and to the Division being contracted with on behalf of the State, and by the Consultant, or such authorized designees as either party may from time to time designate in writing. Notices or communications to or between the parties shall be deemed to have been delivered when mailed by first class mail, provided that notice of default or termination shall be sent by registered or certified mail, or, if personally delivered, when received by such party.

21. SUBCONTRACTORS:

The Consultant may not use subcontractors to perform the services described herein without express prior written consent from the State. The State reserves the right to reject any person from the Agreement presenting insufficient skills or inappropriate behavior.

The Consultant will include provisions in its subcontracts requiring its subcontractors to comply with the applicable provisions of this Agreement, to indemnify the State, and to provide insurance coverage for the benefit of the State in a manner consistent with this Agreement. The Consultant will cause its subcontractors, agents, and employees to comply with applicable federal, state and local laws, regulations, ordinances, guidelines, permits and requirements and will adopt such review and inspection procedures as are necessary to assure such compliance. The State, at its option, may require the vetting of any subcontractors. The Consultant is required to assist in this process as needed.

22. STATE’S RIGHT TO REJECT:

The State reserves the right to reject any person or entity from performing the work or services contemplated by this Agreement, who present insufficient skills or inappropriate behavior, or is considered by the state to be a security risk.

23. INDEMNIFICATION:

Consultant agrees to indemnify the State of South Dakota, its officers, agents, and employees, from and against all claims or proceedings for actions, suits, damages, liabilities, other lossess or equitable releif that may arise at least in part as a result of an act or omission in performing services under this Agreement.

Consultant shall defend the State of South Dakota, its officers, agents, and employees against any claim, including any claim, action, suit, or other proceeding related to the claim. Consultant’s obligation to idemnify includes the payment of attorney fees and other costs of defense. In defending the State of South Dakota, its officers, agents, and employees, Consultant shall engage other professionals, subject to the written approval of the State which shall not be unreasonably witheld. Notwithstanding the foregoing, the State may, in its sole discretion and at the expense of Consultant, engage attorneys and other professionals to defend the State of South Dakota, its officers, agents, and employees, or to assist Consultant in the defense.

This section does not require Consultant to be responsible for or defend against claims or proceedings for damages, liabilities, lossess or equitable relief arising solely from errors or omissions of the State, its officers, agents, or employees.

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24. INSURANCE:

Before beginning work under this Agreement, Consultant shall furnish the State with properly executed

Certificates of Insurance which shall clearly evidence all insurance required in this Agreement, including naming the State of South Dakota, its officers and employees as additional insureds, as set forth below. The Consultant, at all times during the term of this Agreement, shall maintain in force insurance coverage of the types and limits listed below. In the event a substantial change in insurance, issuance of a new policy, cancellation or nonrenewal of the policy, the Consultant agrees to provide immediate notice to the State and provide a new certificate of insurance showing continuous coverage in the amounts required. Consultant shall furnish copies of insurance policies if requested by the State.

A. Commercial General Liability Insurance:

Consultant shall maintain occurrence-based commercial general liability insurance or an equivalent form with a limit of not less than $1,000,000 for each occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two times the occurrence limit. The insurance policy shall name the State of South Dakota, its officers and employees, as additional insureds, but liability coverage is limited to claims not barred by sovereign immunity. The State of South Dakota, its officers and employees do not hereby waive sovereign immunity for discretionary conduct as provided by law.

B. Business Automobile Liability Insurance:

Consultant shall maintain business automobile liability insurance or an equivalent form with a limit of not less than $1,000,000 for each accident. Such insurance shall include coverage for owned, hired, and non-owned vehicles. The insurance shall include coverage for owned, hired, and non-owned vehicles. The insurance policy shall name the State of South Dakota, its officers and employees, as additional insureds but liability coverage is limited to claims not barred by sovereign immunity. The State of South Dakota, its officers and employees do not hereby waive sovereign immunity for discretionary conduct as provided by law.

C. Worker’s Compensation Insurance:

Consultant shall procure and maintain Workers’ Compensation and employers’ liability insurance as required by South Dakota or federal law.

D. Professional Liability Insurance or Miscellaneous Professional Liability Insurance:

Consultant agrees to procure and maintain professional liability insurance with a limit not less than $1,000,000.

(Medical Health Professional shall maintain current general professional liability insurance with a limit of not less than one million dollars for each occurrence and three million dollars in the aggregate. Such insurance shall include South Dakota state employees as additional insureds in the event a claim, lawsuit, or other proceeding is filed against a state employee as a result of the services provided pursuant to this Agreement. If insurance provided by Medical Health Professional is provided on a claim made basis, then Medical Health Professional shall provide “tail” coverage for a period of five years after the termination of coverage.) The insurance policy shall name the State of South Dakota, its officers and employees, as additional insureds but liability coverage is limited to claims not barred by sovereign immunity. The State of South Dakota, its officers and employees do not hereby waive sovereign immunity for discretionary conduct as provided by law.

25. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY, AND

VOLUNTARY EXCLUSION:

Consultant certifies, by signing this Agreement, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by the federal government or any state or local government department or agency. Consultant further agrees that it will immediately notify the State if during the term of this Agreement either it or its principals become subject to debarment, suspension or ineligibility from participating in transactions by the federal government, or by any state or local government department or agency.

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26. CONFLICT OF INTEREST:

Consultant agrees to establish safeguards to prohibit employees or other persons from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest, or personal gain as contemplated by SDCL 5-18A-17 through 5-18A-17.6. Any potential conflict of interest must be disclosed in writing. In the event of a conflict of interest, the Consultant expressly agrees to be bound by the conflict resolution process set forth in SDCL 5-18A-17 through 5-18A-17.6.

27. CONFIDENTIALITY OF INFORMATION:

For the purpose of the sub-paragraph, “State Proprietary Information” shall include all information disclosed to the Consultant by the State. Consultant acknowledges that it shall have a duty to not disclose any State Proprietary Information to any third person for any reason without the express written permission of a State officer or employee with authority to authorize the disclosure. Consultant shall not: (i) disclose any State Proprietary Information to any third person unless otherwise specifically allowed under this Agreement; (ii) make any use of State Proprietary Information except to exercise rights and perform obligations under this Agreement; (iii) make State Proprietary Information available to any of its employees, officers, agents or consultants except those who have agreed to obligations of confidentiality at least as strict as those set out in this Agreement and who have a need to know such information. Consultant is held to the same standard of care in guarding State Proprietary Information as it applies to its own confidential or proprietary information and materials of a similar nature, and no less than holding State Proprietary Information in the strictest confidence. Consultant shall protect confidentiality of the State’s information from the time of receipt to the time that such information is either returned to the State or destroyed to the extent that it cannot be recalled or reproduced. State Proprietary Information shall not include information that (i) was in the public domain at the time it was disclosed to Consultant; (ii) was known to Consultant without restriction at the time of disclosure from the State; (iii) that is disclosed with the prior written approval of State’s officers or employees having authority to disclose such information; (iv) was independently developed by Consultant without the benefit or influence of the State’s information; (v) becomes known to Consultant without restriction from a source not connected to the State of South Dakota. State’s Proprietary Information shall include names, social security numbers, employer numbers, addresses and all other data about applicants, employers or other clients to whom the State provides services of any kind.