RFP Document.pdf

ATE OF SOUTH DAKOTA

DEPARTMENT OF EDUCATION

800 GOVERNORS DRIVE

PIERRE, SOUTH DAKOTA 57501-2235

TSL GRANT TECHNICAL ASSISTANT PROVIDER

PROPOSALS DEADLINE: November 30, 2026 by 5:00 PM CT

RFP #: 26RFP20465 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 Accreditation and Certification (“State”) seeks a qualified nationally recognized vendor who is a leader in Grow Your Own and strategic staffing models to provide professional services on behalf of the State of South Dakota (“Consultant”) for the purpose of providing primary statewide technical assistance and grant implementation management 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 Schedule of Activities

RFP Publication October 31, 2026

Deadline for Submission of Written Inquiries November 6, 2026 by 5:00 PM CT

Responses to Consultant Questions November 18, 2026

Proposal Submission Deadline November 30, 2026 by 5:00 PM CT

Oral proposals/discussions (if required) December 2026

Anticipated Award /Contract Negotiation December 2026/January 2027

Contract Start Date January 2027

1.3 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# 26RFP20465

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Proposals may be modified or withdrawn by the Consultant prior to the established due date and time.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

1.4 Certification and Qualification

mailto:Rochelle.Kenzy@state.sd.us

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.

1.5 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.

1.6 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 #

26RFP20465”.

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.

1.7 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.

1.8 Length of Contract

January 1, 2027 to September 30, 2029

The State reserves the right to extend any contract awarded as a result of this Request for Proposal (RFP) for one (1) year 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.

1.9 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.

1.10 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.

1.11 Web Content Accessibility Guideline

If applicable the Consultant’s application is required to conform to the Web Content Accessibility Guidelines 2.1, Level AA

1.12 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.

1.13 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.

1.14 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.

2. Scope of Work

The Consultant shall:

2.1 Provide the State with technical assistance and implementation management. Serve as the primary statewide technical assistance, implementation planning and management, and federal compliance partner across all three project years. Furthermore, the Consultant will serve as the statewide implementation, technical assistance, and systems integration partner responsible for connecting the Initiative’s component activities into a coherent, high-fidelity statewide strategy aligned to HCMS (Human Capital Management Systems), SD TAP (South Dakota Teacher Apprenticeship Pathway), mentor/journeyworker, and strategic staffing goals. Consultant shall also provide the required in-kind match as required by the federal grant and submit match documentation to the State.

2.2 Deliverable 1: SD TAP Expansion and Implementation Support

2.2.1 Provide statewide technical assistance supporting SD TAP implementation planning and expansion in participating schools, with a focus on Teacher and School Leader (TSL)-eligible high-need schools. Services to include:

2.2.1.1 Apprenticeship coaching, to include but not limited to, competency-based mentoring, instructional coaching, educator evaluation alignment, data-informed decision-making and instructional support, cultural responsiveness, collaborative leadership, and continuous improvement practices;

2.2.1.2 District onboarding, to include, but not limited to, assistance with SD TAP involvement;

2.2.1.3 Mentor/journeyworker alignment and development support, including design and delivery of structured mentor training and coaching curriculum (to be provided as in-kind match for grant requirements) that is grounded in adult learning theory, designed and continuously refined to align curriculum and learning experiences to ensure coherence across teacher, mentor, and leadership pathways, including alignment with South Dakota’s educator effectiveness standards, licensure expectations, and SD TAP competencies to include, but is not limited to, the following:

2.2.1.3.1 Year-long structured professional development designed and facilitated by nationally recognized leaders, including national teachers of the year. Such training is to be aligned to InTASC Model Teaching Standards and provided to each participating mentor at a rate of 10 monthly live facilitated sessions, 30 structured 1:1 mentoring conversation guides, individualized coaching and feedback on required deliverables, and access to a full set of observation, coaching and evaluation tools;

2.2.1.4 Workforce pathway development and educator recruitment strategies, to include but not limited to, exploration and support associated with strengthening pathways and educator recruitment strategies;

2.2.1.5 Coordination with educator preparation partners – specifically Dakota State University and Northern State University – involved with SD TAP; and

2.2.1.6 Technical assistance integrating strategic staffing, HCMS, and evaluation-informed professional growth systems.

2.3 Deliverable 2: Data systems, Continuous Improvement, and Sustainability Planning

2.3.1 Provide support for the development of the following statewide implementation monitoring systems, performance measurement processes, continuous improvement cycles, stakeholder feedback systems, and sustainability planning activities. Annual implementation reviews will support data-informed decision-making and continuous improvement across participating districts and schools. Services to include:

2.3.1.1 Data collection and reporting support to include but not limited to assisting with data collection, review, and performance feedback;

2.3.1.2 Implementation of fidelity reviews to monitor grant activity performance, and guide adjustments in support, resource allocation, and strengthen implementation quality;

2.3.1.3 Support of communities of practice throughout the various grant activities and time frame;

2.3.1.4 Exploration of braided funding strategies to support ongoing efforts; and

2.3.1.5 Technical assistance to strengthen local HCMS (Human Capital Management

Systems) and PBCS (Performance-Based Compensation Systems).

2.4 Program Governance, Federal Reporting, and Compliance Support

2.4.1 Provide support for project governance, grant management consultation, federal program compliance assistance, Government Performance and Results Act (GPRA) performance reporting, implementation documentation, risk mitigation planning, and coordination among the State, participating districts, educator preparation providers, and project partners throughout the grant period.

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# 26RFP20465

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 handwritten, 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 20 Experience, Qualifications, and Approach 25 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 services under this Agreement shall commence on _______________, and end on _______________, unless sooner terminated pursuant to the terms hereof. This Agreement may be renewed at the initiative of the State, and if mutually agreed upon by the parties, for __________ additional one-year terms.

2. The State will make payment for services upon satisfactory completion of the services. The TOTAL

CONTRACT AMOUNT is an amount not to exceed $_______________. The State’s total liability for all services, including expenses, is limited to this total contract amount. This amount may only be increased upon the written agreement of Consultant and the State, and such agreement must specifically reference this paragraph. Payment will be made by the State upon receipt of Consultant invoices in accordance with the budget below.

3. The State will not pay Consultant’s expenses as a separate item.

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

5. The Consultant will not use State equipment, supplies or facilities.

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. The insurance policy shall name the State of South Dakota, its officers, and employees, as additional insured, 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:

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 including naming the State, its officers and employees, as additional insured, as set forth above. 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 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 the 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. When applicable, Consultant agrees to comply with all federal statutes, regulations, executive orders, and requirements associated with the federal funding source, including 2 CFR Part 200.

12. The Consultant may not use subcontractors to perform the work under this Agreement without the express prior written consent of the State. The State reserves the right to evaluate and propose subcontractor for suitability and compliance with applicable requirements. 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. The State, at its option, may require the vetting of any subcontractors. The Consultant is required to assist in this process as needed.

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, drawings, software system programs and documentation, procedures, files, operating instructions and procedures, source code(s) and documentation, including those necessary to upgrade and maintain any software program, State proprietary information, State data, end user data, Personal 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 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. 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.

15. The Consultant certifies, by signing this Agreement, that neither it nor its principals are presently debarred, suspended, proposed for debarment or suspension, or declared ineligible or voluntarily excluded from participating in transactions by any federal department 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 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. 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 agreement 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 Agreement, 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. The State will pay the Consultant after the Consultant presents an itemized invoice for the services actually performed, and the State accepted the invoiced services. Each invoice must reference the Agreement number, provide detailed information in a format as requested by the State, and, if applicable, follow the budget as outlined herein. 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 thirty 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 (30) 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. 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 (45) 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.

20. 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.

21. 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.

22. Consultant shall maintain documentation for all work performed or money received under this Agreement for a period of five (5) full years following completion of this Agreement. If any litigation, claims or audit is started before the expiration of the five-year period, the records must be retained until all litigation, claims, or audit findings involving the records have been resolved and final action taken. The State, through any authorized representative, shall have access to and the right to examine and copy all records, books, papers or documents related to services rendered under this Agreement and shall have access to personnel of the Consultant for purposes of interview and discussion related to the records, books, papers, and documents. State Proprietary Information, which shall include all information disclosed to the Consultant by the State, shall be retained in Consultant’s secondary and backup systems and shall 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. This documentation may be subject to audit, at any reasonable time and upon reasonable notice, by State or federal authorities, as applicable based on the funding source.

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 for cause 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 resulting from the Consultant's default. 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. The State may take over the work and may award another party an agreement to complete the work under this Agreement. 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 but not limited to the indemnification, controlling law and venue, and sovereign immunity provisions. 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. For the purpose of this paragraph, “State Proprietary Information” shall include all information, regardless of its format, 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 and who have been instructed that such information is or may be confidential under state or federal law. 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 State Proprietary 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; or (v) becomes known to Consultant without restriction from a source not connected to the State of South Dakota.

State Proprietary Information may 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. Consultant understands that State Proprietary Information may be confidential and protected under applicable state or federal law and agrees to immediately notify the State if the Information is disclosed, either intentionally or inadvertently. 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 agrees that its officers, agents and employees will be required to undergo investigation or may be required to sign separate confidentiality agreements, and it will limit access to the confidential information and related work activities to employees that have executed such agreements.

Consultant agrees to remove any employee or agent from performing work under this Agreement that has or is suspected to have violated the terms of this paragraph and to immediately notify the State of such matter.

Consultant will comply with any other confidentiality measures and terms included in the Agreement.

Upon termination of this Agreement, if not already done so as part of the services performed under the Agreement, Consultant agrees to return to the State, at Consultant’s cost, any State Proprietary Information or documentation maintained by the Consultant regarding the services provided hereunder in a format readily usable by the State as mutually agreed by Consultant and State.

Consultant acknowledges that the State shares general information, including performance information, about Consultant among and between other State agencies upon request of such agencies for the purpose of making determinations of the risk involved with potential, subsequent agreements and for other purposes.

Consultant expressly consents and agrees to such uses by the State.

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 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.

28. 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.

29. 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.

30. No remedy conferred by any of the specific provisions of the Agreement is intended to be exclusive of any other remedy, and each and every remedy may be cumulative and may be in addition to every other remedy given under this Agreement, not and hereafter existing at law or in equity or by statue or otherwise.

The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue other available remedies.

31. Pursuant to Executive Order 2020-01, for Consultants with five (5) or more employees who enter into an agreement with the State of South Dakota that involves the expenditure of one hundred thousand dollars ($100,000) or more, by signing this Agreement the Consultant certifies and agrees that it has not refused to transact business activities, have not terminated business activities, and has not taken other similar actions intended to limit its commercial relations, related to the subject matter of the 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 or divestment of Israel in a discriminatory manner.