RFP Document.pdf

8STATE OF SOUTH DAKOTA

DEPARTMENT OF EDUCATION

800 GOVERNORS DRIVE

PIERRE, SOUTH DAKOTA 57501-2235

Storage of USDA Commodity Products

PROPOSALS DEADLINE: September 29, 2025 by 5:00 PM CT

RFP #: 25RFP16364 Buyer: Rochelle Kenzy Phone: (605) 773-8063

REQUEST FOR PROPOSAL FORM

FIRM NAME: AUTHORIZED SIGNATURE:

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:

1. General Information

1.1 Purpose of this Request for Proposal (“RFP”)

The South Dakota Department of Education’s Division of Child and Adult Nutrition Services (“State”) seeks a qualified vendor to provide professional services on behalf of the State of South Dakota (“Consultant”) for the purpose of storing United States Department of Agriculture (USDA) Foods as further specified in Section 2 below.

The Consultant will review all requirements of the RFP and provide a proposal by the deadline listed below. The Consultant will also provide supporting documentation on qualifications and experience to the State.

1.2 Letter of Intent

All interested Consultants may submit a Letter of Intent to respond to this RFP.

The Letter of Intent must be received by the State no later than September 8, 2025, at 5:00 PM CT.

The State will receive letters of intent by email. The Letter of Intent must be submitted to Rochelle Kenzy via email at Rochelle.Kenzy@state.sd.us. Please place the following in the subject line of your email: “Letter of Intent for RFP#25RFP16364”.

1.3 Schedule of Activities

RFP Publication August 22, 2025

Letter of Intent to Respond Due September 8th, 2025, by 5:00 PM CT

Deadline for Submission of Written Inquiries September 15th, 2025, by 5:00 PM CT

Responses to Consultant Questions September 22nd, 2025

Proposal Submission Deadline September 29th, 2025, by 5:00 PM CT

Oral proposals/discussions (if required) October 6th, 2025

Anticipated Award /Contract Negotiation November 3rd, 2025

Contract Start Date December 1st, 2025

1.4 Proposal Submission

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

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

An electronic copy of the proposal shall be submitted. Consultants shall submit to Rochelle Kenzy via email at Rochelle.Kenzy@state.sd.us. Please place the following in the subject line of your email: “RFP Proposal for RFP# 25RFP16364.

mailto:Rochelle.Kenzy@state.sd.us

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

Proposals may be modified or withdrawn by the Consultant prior to the established due date and time. No oral, telephonic, telegraphic or facsimile responses or modifications to proposals will be considered.

1.5 Certification and Qualification

By signing and submitting this proposal, the Consultant certifies that neither it nor its principals are 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 Consultant is unable to certify to any of the statements in this certification, the Consultant shall attach an explanation to their proposal.

No proposal shall be accepted from, or no contract or purchase order shall be 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.

1.6 Non-Discrimination Statement

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

1.7 Consultant Inquiries

Consultants may make email inquiries concerning this RFP to obtain clarification of requirements.

No inquiries will be accepted after the date and time indicated in the Schedule of Activities. Inquiries must be sent to Rochelle Kenzy at Rochelle.Kenzy@state.sd.us with the subject line “RFP

#25RFP16364.

The State will respond to Consultant’s inquiries (if required) via e-mail. All Consultants will be informed of any inquiries and the State’s response. Consultants 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. Consultants will be notified in the same manner as indicated above regarding any modifications to this RFP.

Consultant’s Contacts: Consultant and their agents must direct all questions and comments regarding this RFP to the buyer of record as indicated above. Consultants and their agents may not contact any State of South Dakota employee other than the buyer of record regarding any of these matters during the solicitation and evaluation process. Inappropriate contacts are grounds for suspension or exclusion from specific procurements. Consultants and their agents who have questions regarding this matter should contact the buyer of record.

1.8 Proprietary Information

The proposal of the successful Consultant(s) becomes public information as required by SDCL § 1-27 and § 5-18D-20. Proprietary information can be protected under limited circumstances such as client lists and non-public financial statements. Pricing and service elements are not considered proprietary. An entire proposal may not be marked as proprietary. Consultants 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 and may be returned only at the State's option.

1.9 Length of Contract

December 1, 2025 – November 30, 2026

The State reserves the right to extend any contract awarded as a result of this Request for Proposal (RFP) for an additional four (4) years if it is deemed to be in the best interest of the State of South Dakota. The contract may be renewed at the initiative of the State, and if mutually agreed upon by the parties, for additional one (1) year terms.

1.10 Contract Terms

Any contract or agreement resulting from this RFP will include the State’s standard terms and conditions as set forth in Exhibit A – Standard Contract Terms and Conditions.

1.11 Governing Law

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

1.12 Web Content Accessibility Guideline

If applicable the Consultant’s application is required to conform to the Web Content Accessibility Guidelines 2.0

1.13 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.

1.14 Restriction of Prohibited Entity

In accordance with the South Dakota Codified Law 5-18A, any bidder or offeror submitting a bid or offer in response to this document certifies and agrees that the following information is correct:

The bidder or offeror is not an organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, limited liability company, or other entity or business association, including all wholly-owned subsidiaries, majority-owned subsidiaries, parent companies, or affiliates, of those entities or business associations, regardless of their principal place of business, which is ultimately owned or controlled, directly or indirectly, by a foreign parent entity from, or the government of, the People’s Republic of China, the Republic of Cuba, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the Russian Federation, or the Bolivarian Republic of Venezuela

It is understood and agreed that, if this certification is false, such false certification will constitute grounds for the purchasing agency 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, and further would be cause to suspend and debar a business under SDCL § 5-18D-12.

The successful bidder or offeror further agrees to provide immediate written notice to the purchasing 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 and would be cause to suspend and debar a business under SDCL § 5-18D-12.

1.15 Prohibition on Discrimination against Firearm-related Entity

In accordance with the State of South Dakota, Office of the Governor, Executive Order 2023-04, the following applies to any type of agreement by or on behalf of the State with a financial institution to provide financial services that involves the expenditure of one hundred thousand dollars ($100,000) or more:

For contractors 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 discriminated against a firearm-related entity as defined by South Dakota Executive Order 2023-04. 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 bidder or offeror further agrees that falsely submitting this certification shall serve as cause for debarment from consideration of any state contract for a period not to exceed three years.

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 will result in the contract’s termination if the noncompliance is not cured as provided for in Section 3 of Executive Order 2023-04. The successful bidder or offeror further agrees that its failure to cure any subsequently arising noncompliance shall serve as cause for suspension or debarment from consideration of any state contract pursuant to

SDCL § 5-18D-12.

1.16 Certification of No State Legislator Interest

Offeror (i) understands neither a state legislator nor a business in which a state legislator has an ownership interest may be directly or indirectly interested in any contract with the State that was authorized by any law passed during the term for which that legislator was elected, or within one year thereafter, and (ii) has read South Dakota Constitution Article 3, Section 12 and has had the opportunity to seek independent legal advice on the applicability of that provision to any Agreement entered into as a result of this RFP. By signing an Agreement pursuant to this RFP, Offeror hereby certifies that the Agreement is not made in violation of the South Dakota Constitution Article 3, Section 12.

2. Scope of Work

The Consultant shall:

2.1 Provide storage services for a variety of USDA Food Distribution Programs including but not limited to the National School Lunch Program (NSLP) and the Summer Food Service Program (SFSP). The warehouse will have adequate, secure, and clean storage space for dry, frozen, and refrigerated items.

2.1.1 Retain an electronic system for tracking movement of USDA product and billing and have the means and ability to complete required paperwork in a timely manner.

2.1.2 Provide adequate space and staffing with the ability to pick and stage loads for delivery;

notify local agencies of delivery schedules; and work with the State for smooth operation.

2.1.3 Provide storage, management, and distribution of donated foods in a manner that properly safeguards them against theft, spoilage, damage, or other loss, in accordance with the requirements in 7 CFR 250. Accordingly, such storage facilities must maintain donated foods in sanitary conditions, at the proper temperature and humidity, and with adequate air circulation.

2.1.4 Assure compliance with all Federal, State, or local requirements relative to food safety and health, including required health inspections, and procedures for responding to a food recall.

2.1.5 Assure storage of donated foods in a manner that distinguishes them from other foods.

2.1.6 Maintain separate inventory records of donated foods in all Food Distribution Programs.

2.1.7 Ensure distribution of donated foods to eligible recipient agencies are in a timely manner, in optimal condition, and in quantities that recipient agencies are eligible to receive.

2.1.8 The Consultant understands that USDA Foods cannot be sold on the open market under any circumstance.

2.1.9 Obtain insurance coverage to protect the value of donated foods and provide an insurance certificate for all risk insurances for refrigerated, frozen, and dry products with the State of South Dakota named as additional insured. In addition, the awarded vendor must maintain insurance certificates for general liability, workers compensation, and equipment liability insurance during the performance of the contract. Insurance certificates must be available upon request. Insurance coverage must cover the loss of commodity product under the control of the Consultant.

2.1.10 The Consultant will be financially responsible to the State for products that become damaged, expired, or lost while in their possession.

2.1.11 Permit on-site storage facility reviews by the State, the Comptroller General, the Department of Agriculture, or any of its duly authorized representatives, to determine compliance with requirements in 7 CFR 250.

2.1.12 Establish the duration of the contract and provide for extension or renewal of the contract only upon fulfillment of all contract provisions.

2.1.13 Provide for expeditious termination of the contract by the State for noncompliance with its provisions.

2.1.14 Provide for termination of the contract by either party for other cause, after written notification of such intent at least 60 days prior to the effective date of such action. The awarded vendor must continue to operate under the terms of the contract until such time the State can contract with a new service provider and schedule all remaining inventory to be shipped to the new service provider.

2.1.15 Maintain an inventory management system and cooperate with the State in inventory management by:

a. Following the first in/first out (FIFO) inventory management procedures

b. Monitor available package dates such as best if used by, pack dates, expiration dates, etc.

c. Report product dates to the State

d. Report all damages in a timely manner to the State and coordinate any damaged product disposal and redistribution of salvaged product as instructed by the State.

2.1.16 The Consultant must receive USDA Foods in compliance with Food and Nutrition

Services (FNS) Instructions 709-5 Rev 3 and receipt in product in the USDA Web Based Supply Chain Management System (WBSCM), noting over, short, or damage for every shipment. USDA Food Shipments begin as early as July 1 of each year and continue until June 30 but typically end in March. The awarded vendor must coordinate with the USDA’s contracted freight company for scheduling and appointments of deliveries.

2.1.17 Unload trucks upon arrival at the warehouse and properly store commodities.

2.1.18 The Consultant’s personnel shall count and sign for product as received in good condition. Title passes to the State at the time shipments are received, and the products are unloaded from the truck or trailer by the USDA and/or State contracted vendor.

Occasionally some shortages and damages occur. Claims then arise against a carrier or shipper (or both) for the monetary loss sustained. The USDA must determine liability and pursue such claims. Therefore, it is important that the awarded vendor carefully check each shipment to assure the complete delivery is made; that it is in good condition; and, that any overage, shortage, or damages is properly documented and reported in the USDA’s Web Based Supply Chain Management System (WBSCM). Failure to do so may result in the awarded vendor being held liable for out-of-condition USDA Foods, even though the damage may have occurred during shipment.

2.1.19 Assume costs of demurrage and other charges which accrue after a truck or rail car has been placed for unloading by the USDA and/or State contracted delivery carrier which accrue because placement of truck or railcar is prevented.

2.1.20 Deliver commodity inbounds to the State showing proof of food products received in the warehouse on behalf of USDA and State contracted processors.

2.1.21 Maintain inventory of pallets. The State is not held responsible for lost pallets.

2.1.22 Use Bill of Ladings and other order documentation provided and required by the State to load trucks and other delivery vehicles in order to transport commodity products to recipient agencies.

2.1.23 Coordinate loading schedules with the State’s delivery contractor and place commodity food products in a staging area for easy loading access. The staging area will be necessary for the assembly of refrigerated, frozen and dry product by the warehouse for recipient agencies according to distribution instructions furnished by the State. The awarded vendor must ensure proper temperatures are maintained for frozen and refrigerated product while in the staging area. The Consultant will be responsible for loading the State’s delivery contractor’s trucks.

2.1.24 The Consultant shall release commodity food products to the State’s delivery contractor in accordance with delivery instructions furnished by the State Agency.

2.1.25 The Consultant shall release commodity products to eligible recipient agencies on a “will-call” basis in the city where the warehouse is located or as approved by the State.

2.1.26 Provide notification to eligible recipient agencies prior to delivery. In the event of delivery delays, the Consultant shall work in conjunction with the State’s delivery contractor to notify recipient agencies of a revised delivery schedule. The State’s delivery contractor shall have the primary responsibility of revised schedule notifications.

2.1.27 Provide bill of ladings for each recipient agency in accordance with the amounts listed in the distribution instructions furnished by the State.

2.1.28 Issue freight waybill in accordance with the amounts listed in the bill of lading, and the distribution instructions provided by the State. Upon release of commodity product to the State delivery contractor, the Consultant will furnish to the State’s delivery contractor all necessary copies of the bill of lading, freight waybill, and copies of the State’s delivery receipt for each recipient agency.

2.1.29 The Consultant shall have an automated record keeping system subject to approval by the State and the ability to receive shipments in the USDA’s Web Based Supply Chain Management System (WBSCM).

2.1.30 The Consultant may be called on to furnish facilities, equipment, and administrative services approved by the State in an effort to provide processed donated foods to eligible recipient agencies. The services provided would be negotiated between the State, awarded vendor, State Agencies contractor and processing industry.

2.1.31 According to 7 CFR 250.19, the awarded vendor shall be required to maintain records of agreements and contracts, reports, audits and claim actions, funds obtained as an incident of donated food distributions, and other records specifically required in 7 CFR 250 and other USDA regulations. The Consultant must provide these documents to the State upon request.

2.1.32 The Consultant will permit appropriate State and/or Federal agency personnel to conduct an inventory of product being held in storage on behalf of the State and subject to this agreement with a reasonable amount of notification.

2.1.33 Provide and ensure a commitment to investigate in conjunction with the State, the South Dakota Office of the Attorney General, and/or cognizant Federal agency any unexplained losses of commodity products held in storage.

2.1.34 The Consultant must have adequate storage capacity. The State received approximately

2.2 million pounds in net weight from the USDA for use in the food assistance programs operated by the State. The following are approximate percentages for dry, frozen, and refrigerated commodity products received in the past. These percentages exclude commodity processed products for NSLP: NSLP: Dry – 54%; Frozen – 43%; Refrigerated

– 3%. In addition, the NSLP anticipates approximately 200,000 pounds of raw material to be processed into value-added end products by State contracted commercial processors. This product is delivered to the warehouse by the State contracted processor’s trucks at their own expense to be included in storage for eventual picking and loading onto the trucks for delivery to eligible recipient agencies. Depending on the product, this may result in a range of 200,000 to 360,000 pounds of finished frozen end product. Cases of finished product range from 12 to 50 pounds.

2.1.35 The bid response for handling must be an all-inclusive fixed price based on a per case weight and days in storage.

2.1.36 The Consultant will agree and understand that some USDA donated foods may be delivered by USDA to a recipient agency where the best interest of the State or recipient agency is served. Direct Shipments will be limited to larger recipient agencies.

2.1.37 The State will pay for services rendered for the USDA commodity food products allocated to eligible recipient agencies on a weekly or monthly basis upon receipt of adequate documentation of services. Payment for charges will not be made until the commodity food products have shipped from the warehouse facility for delivery to recipient agencies. Payment will be based on the USDA published standard gross weight for USDA commodities and the standard gross weight as indicated by the vendor/manufacturer for commodity processed product. Pallet weight and dunnage must be excluded from the gross weight of the case/container.

2.1.38 Invoices for storage and handling will be prepared by the awarded vendor.

2.1.39 The Consultant is responsible for collection of storage and handling costs from recipient agencies other than South Dakota public schools for the National School Lunch Program.

The State estimates there are 40 non-public schools on the National School Lunch Program. The State pays the storage and handling costs for public schools to the extent of available State and Federal funds. In the event Federal and/or State funds are no longer available for these payments, the responsibility would rest with the awarded vendor for collection of costs from recipient agencies.

2.1.40 Deliveries for the USDA Summer Food Service Program (SFSP) will be invoiced separately and at the same rate as the National School Lunch Program during the school year.

2.1.41 The Consultant is responsible for collection of storage and handling costs from all invoices to recipient agencies in the Summer Food Service Program.

3. Proposal Response

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

3.1.1 An electronic copy of the proposal shall be submitted. Consultants shall submit to Rochelle

Kenzy via email at Rochelle.Kenzy@state.sd.us. Please place the following in the subject line of your email: “RFP Proposal for RFP#25 RFP16364”

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

3.3 All proposals must be organized and tabbed with labels for the following headings:

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

3.3.2 Executive Summary. The one- or two-page executive summary is to briefly describe the

Consultant’s proposal. This summary should highlight the major features of the proposal. It must indicate any requirements that cannot be met by the Consultant. The reader should be able to determine the essence of the proposal by reading the executive summary.

Proprietary information requests must be identified in this section.

3.3.3 Examples of Similar Work. This section should include brief descriptions and work samples from three previous jobs of a similar nature that the agency has completed. Provide the following information related to at least three previous or current projects, performed by the Consultant’s organization, which are similar to the requirements of this RFP. In addition, provide this information for any project that has been terminated, expired or not renewed in the past three years.

3.3.3.1 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;

3.3.3.2 Dates of the service/contract; and

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

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

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

3.3.4.2 A specific point-by-point response, in the order listed, to each Scope of Work requirement in Section 2 above. The response should identify each requirement being addressed as enumerated in the RFP.

3.3.4.3 A clear description of any options or alternatives proposed.

3.3.5 Financial Statements. The Consultant must submit a copy of their most recent audited financial statements. The Consultant may mark its financial statements as proprietary in accordance with Section 1 above.

3.3.6 South Dakota Substitute W9. Complete the substitute W9 form attached herein as Exhibit B. Do not type a signature in the signature line. The signature must be hand written and a copy attached to the RFP proposal.

3.3.7 Certification Relating to Prohibited Entity. Complete the Contractor certification required by South Dakota SDCL § 5-18D-12 attached herein as Exhibit C.

4. Proposal Evaluation and Award

4.1 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:

a. Cost and Reliability;

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

c. Resources available to perform the work, including any specialized services or personnel, within the specified time limits for the project;

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

e. Availability to the project locale;

f. Familiarity with the project locale;

g. Proposed project management techniques; and

h. Ability and proven history in handling special project constraints.

4.2 The evaluators will evaluate and score the proposals according to the criteria and point values shown in Table 1 below.

Table 1. Proposal Content Evaluation and Score Criteria

Section Points Possible

Score

Cost and Reliability 25 Experience, Qualifications, and Approach 20 Resources available to perform the work 15 Record of Past Performance 10 Availability to and familiarity with the project locale 5 Proposed project management techniques 15 Ability and proven history in handling special project constraints 10

Maximum Total 100

4.3 Experience and reliability of Consultant’s organization and personnel are considered subjectively in the evaluation process. Therefore, the Consultant 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.

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

4.5 The State reserves the right to reject any or all proposals, waive technicalities, and make awards as deemed to be in the best interest of the State of South Dakota. If it is deemed to be in the best interest of the State of South Dakota, the State may accept more than one proposal and divide the services covered by this RFP into more than one contract or Consultant.

4.6 Discussions with Consultants. An oral presentation by a Consultant 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 Consultant. If oral presentations are required, they will be scheduled after the submission of proposals. Oral presentations will be made at the Consultant’s expense.

4.7 Any Consultant that is a finalist may need to be prepared to have an onsite meeting. At that time, Consultant shall provide a series of live demonstrations for evaluation as well as make available key staff for interviews.

4.8 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 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.

4.9 Award: The State and the highest ranked Consultant will mutually discuss and refine the scope of work for the project and will negotiate terms, including compensation and performance schedule.

If the State and the highest ranked Consultant are unable for any reason to negotiate a contract, the State will, either orally or in writing, terminate negotiations with the Consultant. The State may then negotiate with the next highest ranked Consultant.

The negotiation process may continue through successive Consultants, according to the evaluation ranking, until an agreement is reached or the State terminates the contracting process.

5. Cost Proposal

5.1 The financial commitment required of the State is an important consideration. The proposed costs will be reviewed in conjunction with all other criteria. Costs will be evaluated to determine if all applicable cost components are clearly, concisely, and completely addressed by the Consultant. The costs must be reasonable, realistic, and include all possible costs.

5.2 The Consultant is strongly encouraged to identify the critical cost factors from the Scope of Work in

Section 2 above and itemize as much as possible for these activities. The State expects a detailed budget submitted by the Consultant.

5.3 All invoices submitted through the duration of this contract are to be submitted in a consistent manner and include line item costs per deliverable. All cost information shall be presented in a uniform manner.

EXHIBIT A – STANDARD CONTRACT TERMS AND CONDITIONS

Any contract or agreement resulting from this RFP will include the State’s standard terms and conditions as listed below, along with any additional terms and conditions as negotiated by the parties:

1. The Consultant will perform those services described in the Work Plan, which will be attached to the contract as Exhibit A and incorporated by reference. The Consultant’s response to this RFP shall be considered part of the Work Plan.

2. The services to be provided under the contract shall commence and terminate on mutually agreed upon dates. Terms for early termination shall be included in the agreement as negotiated by the parties.

3. The terms of the agreement shall state whether or not the Consultant will use State equipment, supplies or facilities. If the Consultant will use State equipment, supplies or facilities, the scope and conditions of such use will be clearly indicated in the agreement.

4. Unless otherwise negotiated and agreed upon by the parties, the State will make payment in compliance with the Prompt Payment Act, SDCL 5-26 for services provided under the contract.

5. The agreement shall indicate whether or not the State shall have the option to renew the agreement.

If a renewal option is specified, the State shall have the option to renew the agreement (unless otherwise modified by a special contract term, condition, or specification), under the same terms and conditions, for one

(1) year intervals. Notice of intent to renew shall be given by the State to the Consultant as mutually agreed upon prior to the end of the current contract term. If the notice of intent to renew is given, the Agreement shall renew unless terminated by either party pursuant to the Termination Provision of the Agreement.

6. The Consultant, at all times during the term of this Agreement, shall obtain and maintain in force insurance coverage of the types and with the limits as follows:

a. Commercial General Liability Insurance:

The Consultant shall maintain occurrence based commercial general liability insurance or equivalent form with a limit of not less than $1,000,000.00 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.

b. Business Automobile Liability Insurance:

The Consultant shall maintain business automobile liability insurance or equivalent form with a limit of not less than $1,000,000.00 for each accident. Such insurance shall include coverage for owned, hired and non-owned vehicles.

c. Worker’s Compensation Insurance:

The Consultant shall procure and maintain workers’ compensation and employers’ liability insurance as required by South Dakota law.

d. Professional Liability Insurance or Miscellaneous Professional Liability Insurance:

The Consultant agrees to procure and maintain professional liability insurance or miscellaneous professional liability insurance with a limit not less than $1,000,000.00.

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. In the event of a substantial change in insurance, issuance of a new policy, or 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.

7. 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 _________________ on behalf of the State, and by __________________, on behalf of 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.

8. While performing services hereunder, the Consultant is an independent contractor and not an officer, agent or employee of the State of South Dakota. The Consultant will provide the State with its Employer Identification Number, Federal Tax Identification Number or Social Security Number upon execution of this Agreement.

9. Consultant agrees to hold harmless and indemnify the State of South Dakota, its officers, agents and employees, from and against any and all actions, suits, damages, liability or other proceedings which may arise as a result of performing services hereunder. This section does not require the Consultant to be responsible for or defend against claims or damages arising solely from errors or omissions of the State, its officers, agents or employees.

10. Consultant agrees to report to the State any event encountered in the course of performance of this Agreement which results in injury to the person or property of third parties, or which may otherwise subject Consultant or the State to liability. Consultant shall report any such event to the State immediately upon discovery. Consultant’s obligation under this paragraph shall only be to report the occurrence of any event to the State and to make any other report provided for by Consultant’s duties or applicable law. Consultant’s obligation to report shall not require disclosure of any information subject to privilege or confidentiality under law (e.g., attorney-client communications). Reporting to the State under this paragraph shall not excuse or satisfy any obligation of Consultant to report any event to law enforcement or other entities under the requirements of any applicable law.

11. The Consultant will comply with all federal, state and local laws, regulations, ordinances, guidelines, permits and requirements applicable to providing services pursuant to this Agreement, and will be solely responsible for obtaining current information on such requirements.

12. The Consultant may not use subcontractors to perform the services described herein without the express prior written consent of the State. The Consultant is solely responsible for the performance of any subcontractor. 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.

13. This Agreement may not be assigned without the express prior written consent of the State. An assignment may not operate to relieve Consultant of any of its duties and obligations under this Agreement, nor may such assignment affect any remedies available to the State that may arise from any breach of the provisions of the Agreement, including but not limited to rights of setoff. Any attempted assignment, transfer or delegation in contravention of this paragraph shall be null and void. This Agreement shall inure to the benefit of and be binding on the parties hereto and their permitted successors and assigns.

14. The Consultant hereby acknowledges and agrees that all reports, plans, specifications, technical data, miscellaneous drawings, software system programs and documentation, procedures, or files, operating instructions and procedures, source code(s) and documentation, including those necessary to upgrade and maintain any software program, and all information contained therein provided to the State by the Consultant in connection with its performance of services 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. Papers, reports, forms, software programs, source code(s) and other material which are a part of the work under this Agreement will not be copyrighted without written approval of the State.

15. The Consultant certifies that neither Consultant nor its principals are presently debarred, suspended, proposed for debarment or suspension, or declared ineligible from participating in transactions by the federal government or any state or local government department or agency. The Consultant further agrees that it will immediately notify the State if during the term of this Agreement Consultant 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. The Consultant further certifies that neither it nor its principals have, within a three (3) year period preceding the awarding of this Agreement, been convicted of or had a civil judgment rendered against it for commission of fraud or been convicted of a criminal offense in connection with obtaining, attempting to obtain, or performing a federal, state, or local transaction or contract or been convicted of a violation of federal or state antitrust statutes, embezzlement, theft, forgery, bribery, falsifications, destruction of records, making false statements, or receiving stolen property. Consultant further certifies that neither it nor its principals have, within a three (3) year period preceding this contract, had a federal, state, or local transaction terminated for cause or default.

16. The award of this Agreement to Consultant is not in any way an endorsement of Consultant or

Consultant’s services by the State and may not be so represented by Consultant in any advertising or publicity materials. Consultant agrees to submit to the State all advertising, sales promotion, and other publicity relating to this Agreement wherein the State’s name is mentioned or language is used from which the connection of the State’s name therewith may, in the State’s judgment, be inferred or implied. Consultant further agrees not to publish or use such advertising, sales promotion, or publicity without the prior written consent of the State. Consultant may not in any way contract on behalf of or in the name of the State, nor may Consultant release any informational pamphlets, notices, press releases, research reports, or similar public notices concerning this Agreement without obtaining the prior written approval of the State.

17. Payment will be made pursuant to itemized invoices submitted with a signed state voucher. Each invoice must reference the Agreement number and provide detailed information in a format as requested by the State. Payment will be made consistent with SDCL Ch. 5-26. Consultant acknowledges that it would be difficult or impracticable for the State to provide the notice of disagreement provided for by SDCL 5-26-5 within the ten days provided by that section. Accordingly, Consultant hereby waives the application of that section to this Agreement.

18. The payment of any invoice by the State will not prejudice the State’s right to object to or question that or any other invoice or matter in relation thereto. The Consultant shall promptly, but in all cases within thirty days of notification, pay to the State the full amount of any erroneous payment or overpayment upon notice of an erroneous payment or overpayment to which Consultant is not entitled. If Consultant fails to make such a timely refund, the State shall charge Consultant one percent (1%) per month on the amount due until paid in full.

19. The State is a sovereign entity, and shall not be liable for the payment of federal, state and local sales, use and excise taxes, including any interest and penalties from any related deficiency, which may become due and payable as a consequence of this Agreement.

20. Amounts due to the State by Consultant, including but not limited to damages, or claims for damages, may be deducted or set-off by the State from any money payable to Consultant pursuant to this Agreement.

21. Consultant shall maintain documentation for all work performed or money received under this Agreement for a period of seven (7) full years following completion of this Agreement. This documentation may be subject to audit, at any reasonable time and upon reasonable notice, by State or federal authorities.

22. Claims for payment must be submitted on an invoice within forty-five (45) days of the date upon which the Consultant knew or should have known of the claim or forty-five (45) days after the termination or expiration of this Agreement, whichever is earlier. If an invoice cannot be submitted within forty-five days, then written notice and an explanation of need must be provided to the State for consideration of an extension, which shall be in the sole discretion of the State. Failure of the Consultant to abide by this paragraph shall relieve the State of any obligation to pay for such claim.

23. 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. If termination for such a default is effected by the State, any payments due to Consultant at the time of termination may be adjusted to cover any additional costs to the State because of Consultant's default. Upon termination the State may take over the work and may award another party an agreement to complete the work under this Agreement. If after the State terminates for a default by Consultant it is determined that Consultant was not at fault, then the Consultant shall be paid for eligible services rendered and expenses incurred up to the date of termination.

24. 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 law or federal funds reductions, this Agreement will be terminated by the State. Termination for any of these reasons is not a default by the State nor does it give rise to a claim against the State.

25. The parties mutually agree that neither of them shall disclose the contents of the agreement except as required by applicable law or as necessary to carry out the terms of the agreement or to enforce that party’s rights under this agreement. Consultant acknowledges that the State and its agencies are public entities and thus are bound by South Dakota open meetings and open records laws. It is therefore not a breach of this agreement for the State to take any action that the State reasonably believes is necessary to comply with the South Dakota open records or open meetings laws, including but not limited to posting this Agreement on the State’s website. If work assignment performed in the course of this Agreement required security requirements or clearance, the Consultant will be required to undergo investigation.

26. This Agreement shall be governed by and construed in accordance with the laws of the State of South Dakota. Any lawsuit pertaining to or affecting this Agreement shall be venued in Circuit Court, Sixth Judicial Circuit, Hughes County, South Dakota.

27. All other prior discussions, communications and representations…