RFP_Media Buying_FINAL_03142024.pdf

Media Buying and Planning

RFP #24-ODU-09-HRS

March 14, 2024

A VASCUPP Member Institution

Issued by Old Dominion University

OLD DOMINION UNIVERSITY

REQUEST FOR PROPOSALS

SEALED - RFP #24-ODU-09-HRS

Title: Media Buying and Planning

Issue Date: March 14, 2024

Due Date and Time: April 18, 2024 NLT 11:00 AM Local Time (Time Stamped 11:01 AM or Later Will Not be

Accepted)

Issuing Agency: Old Dominion University Procurement Services, Suite 111 4401 Powhatan Avenue Norfolk, Virginia 23529-0308

Period of Contract: Upon Execution and remain in full force and effect through June 30, 2025. Upon mutual agreement by and between all parties, any resulting contract may be renewed for up to ten (10) additional one-year renewal periods, with each renewal period valid from July 1st through June 30 for each subsequent year, unless otherwise modified through negotiations.

THIS DOCUMENT CONSTITUTES A REQUEST FOR SEALED PROPOSALS FROM QUALIFIED INDIVIDUALS AND/OR

ORGANIZATIONS TO PROVIDE

ACKNOWLEDGE RECEIPT OF ADDENDUM: #1____ #2____ #3____ #4____ #5____ (Please Initial)

In compliance with this Request for Proposal (RFP) and to all the conditions imposed herein, the signatory agrees to faithfully execute any resulting contract, and offers to furnish the goods/services in accordance with the attached signed proposal or as mutually agreed upon by subsequent negotiation. An ‘Agent’ authorized to bind the company to same shall sign the following section.

Name and Address of Firm:

Date:

_________________________________________ By:

Signature Name:

Typed or Printed (Name and Title)

Phone #:

FEI/FIN #: _________________________________ Fax #:

E-mail address:

Are you or your company registered with eVA? Yes No eVA ID#:_________________________

Is your firm registered with the Commonwealth’s State Corporation Commission (SEC)? If yes, please indicate the identification number:

Are you or your firm certified through the Commonwealth’s Department of Small Business and Supplier Diversity? Yes No

If yes, please indicate the following:

SWaM Designation:

Certification #:

Expiration Date:

TABLE OF CONTENTS

RFP #24-ODU-09-HRS

Media Buying and Planning

I. INSTRUCTIONS TO OFFERORS PAGE 3

II. PURPOSE PAGE 7

III. BACKGROUND PAGE 7

IV. STATEMENT OF NEEDS PAGE 7

V. REPORTING & DELIVERY REQUIREMENTS PAGE 8

VI. GENERAL TERMS AND CONDITIONS PAGE 10

VII. SPECIAL TERMS AND CONDITIONS PAGE 15

VIII. EVALUATION AND AWARD CRITERIA PAGE 17

IX. PROPOSAL PREPARATION AND SUBMISSION

REQUIREMENTS PAGE 19

X. FEES AND PRICING PAGE 20

XI. METHODS OF PAYMENT PROCESSING PAGE 20

XII. ATTACHMENTS

ATTACHMENT A PAGE 22

ATTACHMENT B PAGE 23

ATTACHMENT C PAGE 24

ATTACHMENT D

SUBSTITUTE W-9 FORM PAGE 25

I. INSTRUCTIONS TO OFFERORS:

A. General:

1. The University reserves the right to accept or reject any and all proposals in whole or in part, and waive any informality that may occur during the competitive negotiation process. Further, the University reserves the right to enter into any contract deemed to be in the best interest of the University.

i. Sealed proposals will be received by and in the office of issuing agency specified on page 1 of this RFP until April 18, 2024 No Later Than 11:00 AM local time. Proposals time-stamped 11:01 AM or later will not be considered, and will be returned to the Contractor unopened. The University is not responsible for late delivery by U. S. Postal mail or other couriers.

ii. Should the University experience an ‘unofficial’ closing on and/or during the date and time specified herein for the receipt of sealed proposals, the closing date shall automatically extend to the next day the University is officially opened for business, with the receiving time remaining the same.

iii. It shall be the Offeror’s responsibility to confirm any ‘unofficial’ closing(s).

2. All inquiries and questions regarding this solicitation must be directed to Harry R. Smithson, Jr., NIGP-CPP, CPPO, VCCO, Procurement Services Assistant Director, Department of Strategic Sourcing via email at hrsmiths@odu.edu, and are due NLT 2:00 P.M. (EST) March 26, 2024. A response via an addendum shall be issued for any such requests deemed to have any bearing on service delivery or cost.

3. IDENTIFICATION OF PROPOSAL ENVELOPE: The signed proposal should be returned in a separate envelope or package, sealed and identified as follows:

From: ___________

Name of Offeror Due Date Time

Street or Box Number RFP No.

City, State, Zip Code RFP Title

The envelope should be addressed as directed on Page 1 of the solicitation.

Proposals may be hand delivered to the designated location in the office issuing the solicitation.

No other correspondence or other proposals should be placed in the envelope.

4. The University may make such reasonable investigations as deemed proper and necessary to determine the ability of the Offeror to perform the services/furnish the goods and the Offeror shall furnish to the University all such information and data for this purpose as may be requested. The University reserves the right to inspect Offeror’s physical facilities prior to award to satisfy questions regarding the Offeror’s capabilities. The University further reserves the right to reject any proposal if the evidence submitted by, or investigations of, such Offeror fails to satisfy the University that such Offeror is properly qualified to carry out the obligations of the contract and to provide the services and/or furnish the goods contemplated therein.

5. Announcement of Award: Upon the award or the announcement of the decision to award a contract as a result of this solicitation, the University will publicly post such notice on the eVA VBO website for a minimum of 10 days.

mailto:hrsmiths@odu.edu

6. Proposal Binding Period: Any response to this solicitation shall be valid for (120) days. At the end of the (120) days the proposal may be withdrawn at the written request of the Offeror. If the proposal is not withdrawn at that time it remains in effect until an award is made or the solicitation is canceled.

7. Offeror Certification: By submitting their proposals, Offeror’s certify to the University that:

i. Their proposals are made without collusion or fraud and that they have not offered or received any kickbacks or inducements from any other Offeror, supplier, manufacturer or subcontractor in connection with their proposal, and that they have not conferred on any public employee having official responsibility for this procurement transaction any payment, loan, subscription, advance, deposit of money, services or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value was exchanged. (the VPPA §2.2-4367 through §2.2-4377.)

ii. They will conform to the provisions of the Federal Civil Rights Act of 1964, as amended, as well as the Virginia Fair Employment Contracting Act of 1975, as amended, where applicable, the Virginians with Disabilities Act, and the Americans with Disabilities Act.

iii. If awarded the contract as a ‘faith-based’ organization, they shall not discriminate against any recipient of goods, services, or disbursements made pursuant to the contract on the basis of the recipients religion, religious belief, refusal to participate in a religious practice, or on the basis of race, age, color, gender or national origin and shall be subject to the same rules as other organizations that contract with public bodies to account for the use of the funds provided; however, if the faith-based organization segregates public funds into separate accounts, only the accounts and programs funded with public funds shall be subject to audit by the public body. (the Rules §36.E.)

iv. They do not and will not during the performance of any resulting contract employ illegal alien workers or otherwise violate the provisions of the federal Immigration Reform and Control Act of 1986.

v. They are not currently debarred by the Commonwealth of Virginia from submitting proposals on contracts for the type of goods and/or services covered by this solicitation, nor are they an agent of any person or entity that is currently so debarred.

vi. They agree to faithfully enter into any resulting contract and further conveys, sells, assigns, and transfers to the Commonwealth of Virginia all rights, title and interest in and to all causes of action it may now have or hereafter acquire under the antitrust laws of the United States and the Commonwealth of Virginia, relating to the particular goods or services purchased or acquired by the Commonwealth of Virginia under said contract.

8. Offeror Obligation: Offeror shall carefully examine the terms and conditions set forth in this

Request for Proposal and any subsequent addenda. Failure to do so shall not relieve a Offeror of an obligation to furnish the goods and/or services specified in this Request for Proposal and its addenda.

9. Discrimination by University Prohibited:

i. The University shall not discriminate against any Offeror during this solicitation or award of any resulting contract because of race, religion, color, sex, national origin, age, disability, any other basis prohibited by state law relating to discrimination in employment.

(the Rules §9.A.)

ii. The University shall not discriminate against any Offeror during this solicitation or award of any resulting contract because the Offeror employs ex-offenders unless the University has made a written determination that employing ex-offenders on the specific contract is not in its best interest. (the Rules §9.D.)

iii. The University shall not (i) discriminate against a faith-based organization on the basis of the organization's religious character or (ii) impose conditions that (a) restrict the religious character of the faith-based organization, except as provided in subsection F of the Rules

§36, or (b) impair, diminish, or discourage the exercise of religious freedom by the recipients of such goods, services, or disbursements. (the Rules §36.C.)

10. eVA Website Portal: The eVA Internet electronic procurement solution, website portal www.eVA.virginia.gov, streamlines and automates government purchasing activities in the Commonwealth. The eVA portal is the gateway for Contractors to conduct business with state agencies and public bodies. All Contractors desiring to provide goods and/or services to the Commonwealth shall participate in the eVA Internet eprocurement solution either through the eVA Basic Contractor Registration Service or eVA Premium Contractor Registration Service. If selected for award by the University, selected Offeror must register in eVA and agree to pay the Contractor Transaction Fees specified on the eVA website. Failure to register will result in cancellation of contract.

11. Ownership Of All Data and Trade Secrets or Proprietary Information:

i. Materials and documentation originated and prepared for the University pursuant to this RFP shall belong exclusively to the university and be subject to public inspection in accordance with the Virginia Freedom of Information Act, Chapter 37 (§ 2.2-3700 et seq.)

of Title 2.2 of the Code of Virginia.

ii. Trade secrets or proprietary information submitted by an Offeror shall not be subject to public disclosure under the Freedom of Information Act; however, the Offeror must invoke the protections of §23-38.90 of the Code of Virginia, specifically the ‘Rules Governing Procurement of Goods, Services, Insurance, and Construction by a Public Institution of Higher Education of the Commonwealth of Virginia (the “Rules”), subsection F. of §34, in writing either before or at the time the data or other material is submitted.

iii. The written notice must specifically identify the data or materials to be protected and state the reasons why protection is necessary. The proprietary or trade secret material submitted must be identified by some distinct method such as highlighting or underlining and must indicate only the specific words, figures, or paragraphs that constitute trade secret or proprietary information.

iv. Old Dominion University is a public institution and a such its files are available for public review under Virginia Public Records Law. Vendors must only label as “proprietary” that information which can be clearly demonstrated as being proprietary and not in common use or common knowledge. The classification of an entire proposal document, line item prices and/or total proposal prices as proprietary or trade secrets is not acceptable and will result in rejection of the proposal.

12. Specifications:

i. Specifications used herein are to be considered a quality indicator and acceptance will be based on Offeror’s compliance with the intent of the specifications. Deviations and/or exceptions taken to the specifications herein may be considered if they are deemed to meet the intent of the solicitation.

ii. Unless otherwise provided in the Request for Proposal, the name of a certain brand, make, or manufacturer shall not restrict Offerors to the specific brand, make, or manufacturer named and shall be deemed to convey the general style, type, character, and quality of the article desired. Any article that the Institution in its sole discretion determines to be the equal of that specified, considering quality, workmanship, economy of operation, and suitability for the purpose intended, shall be accepted (the Rules §12.)

13. Tax Exempt: Sales to the Commonwealth of Virginia are exempt from State sales tax. State sales and use tax certificates of exemption, Form ST-12, will be issued upon request. Deliveries against this contract shall usually be free of Federal excise and transportation taxes. The Commonwealth’s excise tax exemption registration number is 54-73-0076K.

B. Specific:

1. References:

Offerors shall complete and submit with response the requested account and reference information specified herein in Attachment A. Offeror shall provide a minimum of five (5) references, however, additional references may be included as a separate attachment incorporated into the response.

If at any time during the past ten (10) years the Offeror and/or any of the Offerors’ currently named principals has conducted business and/or held a contract agreement of any type with Old Dominion University, either under the Offeror’s current legal name or a previous legal name including any sole proprietorship, corporation, partnership, limited liability corporation, or joint venture, etc., then Offeror shall include as a named reference, Old Dominion University.

If Old Dominion University is named as a reference in an Offeror’s response, then Offer’s past performance for any and all Old Dominion University contracts held and/or completed during the specified ten (10) year period may be used to determine a Offeror’s responsibility and subsequent award of this contract.

II. PURPOSE

The purpose of this Request for Proposal (RFP) is to solicit proposals to establish a contract through competitive negotiations for Old Dominion University. The University is seeking an experienced agency or agencies for traditional media buying and media planning.

For media buying and planning, the successful firm will partner with the University to build the Old Dominion University brand nationally. It will do so by consistently telling the Old Dominion University story, placing each message in front of the right audience. The selected agency will methodically develop a strategic and effective omnichannel media mix. Old Dominion University will award its media account to a media partner that demonstrates an understanding of how to reach an audience successfully.

III. BACKGROUND

ODU, located in Norfolk, is Virginia's forward-focused public doctoral research university with more than 24,000 students, rigorous academics, an energetic residential community and initiatives that contribute $2.6 billion annually to Virginia's economy. Old Dominion University began its tradition of excellence when it was founded in 1930 by the College of William and Mary, the second oldest university in the United States. Established as an extension of William and Mary in Williamsburg, Virginia, and Virginia Polytechnic Institute in Blacksburg, Virginia, Old Dominion began educating teachers and engineers. The two-year school rapidly evolved into a four-year institution, and was granted independence in 1962 as Old Dominion College.

Considerable growth in enrollment, the expansion of research facilities and preparation for the addition of graduate programs led the Board of Visitors to approve the name change to Old Dominion University. Now Old Dominion is a powerhouse for higher education with six colleges: Arts and Letters; Business, Education and Professional Studies; Engineering and Technology; Health Sciences; and Sciences. Old Dominion has offered master's degrees since 1964 and Ph.D.s since 1971. The University has achieved designation as a Research University (high research activity) from the Carnegie Foundation for the Advancement of Teaching.

Proud of its past, Old Dominion constantly looks to the future and prides itself on its continually expanding research and teaching programs. An ever-evolving university, Old Dominion is an agent of change for its students, for the region and the nation it serves. Our nationally recognized faculty use real-world expertise and innovative teaching methods to challenge students to achieve their highest goals. Our determined entrepreneurial approach to problem-solving drives cutting-edge research, eminent scholarship and strategic partnerships with government, business, industry, organizations and the arts.

IV. STATEMENT OF NEEDS/SCOPE OF WORK:

A. GENERAL: The selected agency will help position Old Dominion University across many audiences, including Gen Z high school students and their families, Gen Z college students, millennial students in Ohio and out of state, adult learners, and influential peers. It will do so through a fully integrated media plan that includes traditional media that aligns with the work of our digital media agency of record (AOR).

The selected partner will help Old Dominion University build and measure its branding efforts through brand attitude and preference.

B. SPECIFIC: The selected agency must demonstrate expertise and achieved success in media planning and buying for paid media services. The awarded agency will work on two main objectives: first, analyze Old Dominion University’s existing traditional media plan and enhance it as needed; and second, provide traditional media planning and buying services, analysis of media opportunities, and points of view on potential media partners. By meeting these objectives, the agency will increase Old Dominion University’s brand awareness, preference and attitude by consistently connecting each message with the right target using the best possible medium.

At minimum, the comprehensive media plan will include – and the ideal partner agency must have the capability to create and manage – elements of the following:

1. Paid Media Audit: The selected vendor will audit Old Dominion University’s existing paid media plan and recommend effective media planning and buying strategies for brand building and recognition. It will also ensure that such media audits connect each medium with targeted audiences as part of our segmentation strategy.

2. Media Planning: Effectively plan the right balance and integration of traditional media and digital media. Partner with our digital agency of record (AOR) to ensure that Old Dominion University has the proper alignment across all traditional media outlets and digital platforms. It is an expectation that the chosen agency will follow current national media buying trends implemented by growing brands not only in higher education but also in other fields and industries.

3. Media Buying: The selected agency must be be experienced in providing the following expert services: broker the best location and placement in traditional media such as; outdoor, print, radio, television, and transit; negotiate the best possible cost to maximize advertising dollars and secure added value in each media buy.

4. Data Reporting and Analysis: The selected agency will track and monitor campaigns, optimize or adapt ad budgets, give full access to data, provide regular updates, and recommendations to UCM. This also includes monthly reports, including analysis and recommendations.

V. REPORTING AND DELIVERY REQUIREMENTS:

UTILIZATION OF SMALL BUSINESSES AND BUSINESSES OWNED BY WOMEN AND MINORITIES:

A. Any subsequent contract(s) that include a final SWAM Plan must provide for expenditure percentages for each proposed SWAM subcategory, as mutually negotiated and agreed to.

B. Periodic Progress Reports/Invoices: For those contract(s) that include a final SWAM Plan, the Contractor shall provide on a quarterly basis to the appropriate University contact, a report on involvement of small businesses and businesses owned by women and minorities. This report will specify (i) the proposed total spend percentage and proposed total spend in dollars during the contract term for each proposed SWAM subcategory, (ii) the proposed total spend percentage and proposed total spend in dollars during the contract term with each identified and specified business, (iii) the actual spend percentage and actual spend in dollars to date and/or current period with each identified and specified business. This information shall be provided separately for small businesses, women-owned businesses and minority businesses.

C. Final Actual Involvement Report: The Contractor(s) shall submit to the appropriate University contact, within 60 days of contract completion, a report on the actual dollars spent with small businesses and businesses owned by women and minorities during the performance of the contract. At a minimum, this report shall include for each firm contracted with and for each such business class (i.e., small, women-owned) a comparison of the total actual dollars spent on this contract with the planned involvement of the firm and business class as specified in the proposal, and the actual percent of the total estimated contract value.

D. If at any time during the contract term, as evidenced by review of required quarterly and report submittals, the awarded Contractor fails to meet proposed SWAM expenditure percentages, the University may deem same in ‘breach of contract’, and take appropriate action as necessary, which may include:

1. An agreed to period to allow Contractor ‘time to cure’;

2. Cancellation of remaining term(s) of contract; or

3. The withholding of funds due to Contractor equal to the difference between proposed expenditure amount versus actual expenditure amount for any and all SWAM subcategories.

E. In the event Contractor provides satisfactory resolution to any SWAM subcategory spend deficiency, the

University will release to Contractor the associated funds withheld.

F. The University’s right to withhold any funds due the Contractor pursuant to this section, shall not relieve the Contractor of their contractual obligations.

B. Good Faith Small, Women, and Minority (SWaM) Owned Business Participation Efforts:

1. Old Dominion University is committed to the preservation and strengthening of small businesses, small businesses owned by women and minorities and to encouraging their participation in State procurement activities. Subsequently, the University is committed to achieving its FY2024 aspirational target of forty-seven and one-half percent (47.5%) with firms certified by the Commonwealth’s Department of Small Business and Supplier Diversity (“DSBSD”) for combined prime contractor and subcontractor spend. The University requests assistance from all potential prime contractor’s in reaching this goal by specifically meeting or exceeding expenditure targets equal to:

a. 8% for MBE spend;

b. 6.5% for WBE spend; and

c. 33% for SBE spend.

2. It is the University’s goal to achieve these targets through Offeror’s willingness to provide for participation of small businesses, and businesses owned by women and minorities through partnerships, joint ventures, subcontracts, or other contractual opportunities. Submission of a report of past efforts to utilize the goods and services of such businesses, and plans for involvement on this contract are required. By submitting a response, /Offeror certifies that all information provided in response to this solicitation is true and accurate. Failure to provide the information required by this solicitation may ultimately result in the response being deemed non-responsive, and ultimately rejected.

3. Plans submitted that include involvement and participation of certified DSBSD SWAM firms will be evaluated based on commitment to meeting the University’s targets specified in above paragraph 1., and as applicable, will be awarded associated points as calculated and described herein.

4. The University also encourages Offeror’s to provide for participation of small businesses, and businesses owned by women and minorities through partnerships, joint ventures, subcontracts, or other contractual opportunities. Submission of a report of past efforts to utilize the goods and services of such businesses, and plans for involvement on any resulting contract are required. By submitting a response, Offeror certifies that all information provided in response to this solicitation is true and accurate. Failure to provide the information required by this solicitation may ultimately result in response being deemed non-responsive, and ultimately rejected.

5. While it is the University’s intent to enter into an exclusive agreement with one Offeror, whenever possible, all potential Offerors are encouraged to subcontract any applicable services by partnering with qualified vendors that have also been certified as small, small woman-owned, small minority-owned, businesses through the Commonwealth of Virginia’s DSBSD.

6. Regardless of whether or not the Offeror is able to qualify for DSBSD certification, selected Offeror shall also agree to provide reports to the University’s Department of Procurement Services, identifying the subcontractors used during the performance of any subsequent contract, as follows:

A. Goods and Services – Quarterly Reports:

i. DSBSD Certified subcontractors:

(a) Firm name;

(b) DSBSD certification number;

(c) DSBSD Designation (Small, Woman, Minority);

(d) Value of subcontractor’s contract;

(e) Amount paid current quarter;

ii. Non-DSBSD Certified subcontractors – Contracts >$100,000:

(a) Firm name;

(b) DSBSD certification number;

(c) DSBSD Designation (Small, Woman, Minority);

(d) Value of subcontractor’s contract;

(e) Amount paid current quarter;

Note: Contractor(s) may be deemed in “breach of contract” for failure to provide the required subcontractor data and reports as specified above, and the contract and/or purchase order may be cancelled. Additionally, the University may withhold payment(s) for any and all services provided and invoiced during the period, and those same services will remain unpaid until such data and reports are provided.

C. Authorized Contract Participation: In accordance with the University’s Rules Governing Procurement of Goods, Services, Insurance and Construction (“Rules Document”), specifically §6, Cooperative Procurement, it is the intent of this solicitation to allow any public body, public or private health or educational University’s, or Old Dominion University’s affiliated agencies and/or corporations, access and use of any subsequent contract(s), as authorized by the Contractor(s).

Participation in this cooperative procurement is strictly voluntary. If authorized by the Contractor(s), any resultant contract(s) may be extended to the entities as indicated above to purchase at contract prices in accordance with contract terms and conditions. The Contractor(s) shall notify Old Dominion University in writing of any entities accessing the contract. No modification of this contract or execution of a separate contract is required to participate.

The Contractor(s) will provide semi-annual usage reports for all entities accessing the contract(s). Participating entities shall place their own orders directly with the Contractor(s), and shall fully and independently administer their use of the contract(s), including contractual disputes, invoicing and payments, without direct administration from Old Dominion University. Old Dominion University shall not be held liable for any costs or damages incurred by any other participating entity as a result of any authorization by the Contractor(s) to extend participation and use of the contract(s). It is understood and agreed that Old Dominion University is not responsible for the acts or omissions of any entity, and will not be considered in default of the contract(s) no matter the circumstances.

Use of this contract does not preclude any participating entity from using other contracts or competitive processes as the need may be.

VI. GENERAL TERMS AND CONDITIONS

The following ‘general’ terms and conditions shall govern this solicitation, associated Offeror response(s), and as applicable, may be incorporated into any resulting contract.

A. ADVERTISING: Offeror agrees that that no indication of such sales or services to the University will be used in product literature or advertising during the contract term of any contract award for supplies, equipment, or services resulting from this proposal.

B. APPLICABLE LAWS AND COURTS: This solicitation and any resulting contract shall be governed in all respects by the laws of the Commonwealth of Virginia and any litigation with respect thereto shall be brought in the courts of the Commonwealth. The agency and the Contractor are encouraged to resolve any issues in controversy arising from the award of the contract or any contractual dispute using Alternative Dispute Resolution (ADR) procedures (Code of Virginia, § 23-38.90). The Contractor shall comply with all applicable federal, state and local laws, rules and regulations and policies of the University.

C. APPLICABLE LEGISLATION AND MANUAL: This solicitation and any resulting contract is subject to the provisions of the Commonwealth of Virginia, specifically § 23-38.90 of the Code of Virginia and its associated Rules Governing the Procurement of Goods, Services, Insurance and Construction (“the Rules”) and the Purchasing Manual for Universities of Higher Education and their Contractors and any revisions thereto, which are hereby incorporated into this contract in their entirety. A copy of the manual is accessible on the Internet at www.odu.edu/procurement under “Information for Contractors”.

http://www.odu.edu/procurement

D. ASSIGNMENT OF CONTRACT: Any resulting contract shall not be assignable in whole or in part without the written consent of the University.

E. AVAILABILITY OF FUNDS: The University shall be bound hereunder only to the extent of the funds available or which may hereafter become available during each subsequent fiscal year and/or contract term, as applicable, and any requirement by Contractor for any total or partial compensation or payment by the University of unpaid fees, whether current or future, for lost profit and/or as liquidated damages in the event of early termination of the then current term if for other than breach by the University is prohibitive.

F. AUDIT: Offeror agrees that they shall retain all books, records, and other documents relative to any resulting contract for five (5) years after final payment, or until audited by the Commonwealth of Virginia, whichever is sooner. The University, its authorized agents, and/or state auditors shall have full access to and the right to examine any of said materials during said period.

G. CHANGES TO THE CONTRACT: During the term of any resulting contract, including any and all applicable extensions and/or renewals, changes may be made to the contract in any of the following ways:

1. The parties may agree in writing to modify the scope of the contract. An increase or decrease in the price of the contract resulting from such modification shall be agreed to by the parties as a part of their written agreement to modify the scope of the contract.

2. The University may request and issue change orders within the general scope of the contract at any time by written notice to the Contractor. Changes within the scope of the contract include, but are not limited to, things such as services to be performed, the method of packing or shipment, and the place of delivery or installation. The Contractor shall comply with the notice upon receipt. The Contractor shall be compensated for any additional costs incurred as the result of such order and shall give the University a credit for any savings. Said compensation shall be determined by one of the following methods:

i. By mutual agreement between the parties in writing; or

ii. By agreeing upon a unit price or using a unit price set forth in the contract, if the work to be done can be expressed in units, and the Contractor accounts for the number of units of work performed, subject to the University’s right to audit the Contractor’s records and/or to determine the correct number of units independently; or

iii. By ordering the Contractor to proceed with the work and keep a record of all costs incurred and savings realized. A markup for overhead and profit may be allowed if provided by the contract.

The same markup shall be used for determining a decrease in price as the result of savings realized. The Contractor shall present the University with all vouchers and records of expenses incurred and savings realized. The University shall have the right to audit the records of the Contractor as it deems necessary to determine costs or savings. Any claim for an adjustment in price under this provision must be asserted by written notice to the University within thirty (30) days from the date of receipt of the written order from the University. If the parties fail to agree on an amount of adjustment, the question of an increase or decrease in the contract price or time for performance shall be resolved in accordance with the procedures for resolving disputes provided by the Disputes Clause of this contract or, if there is none, in accordance with the disputes provisions of the Commonwealth of Virginia Purchasing Manual for Universities of Higher Education and their Contractors. Neither the existence of a claim nor a dispute resolution process, litigation or any other provision of this contract shall excuse the Contractor from promptly complying with the changes ordered by the University or with the performance of the contract generally.

H. DEFAULT: In case of failure to deliver goods or services in accordance with the contract terms and conditions, the University, after due oral or written notice, may procure them from other sources and hold the Contractor responsible for any resulting additional purchase and administrative costs. This remedy shall be in addition to any other remedies which the University may have.

I. DISCOUNTS

1. Prompt Payment Discounts: The University will pay within days after acceptance of services rendered and a valid invoice submitted. A prompt payment discount offered for prompt payment of ( 20 ) calendar days or longer will be calculated in determining net low proposal.

2. Special Educational Or Promotional Discounts: The Contractor shall extend any special educational or promotional sale prices or discounts immediately to the University during the term of the contract. Such notice shall also advise the duration of the specific sale or discount price.

J. DRUG-FREE WORKPLACE: (the Rules §11.)

During the performance of any resulting contract, the Contractor agrees to (i) provide a drug-free workplace for the Contractor's employees; (ii) post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in the Contractor's workplace and specifying the actions that will be taken against employees for violations of such prohibition; (iii) state in all solicitations or advertisements for employees placed by or on behalf of the Contractor that the Contractor maintains a drug-free workplace; and (iv) include the provisions of the foregoing clauses in every subcontract or purchase order of over $10,000, so that the provisions will be binding upon each subcontractor or Contractor.

For the purposes of this section, “drug-free workplace” means a site for the performance of work done in connection with a specific contract awarded to a Contractor, the employees of whom are prohibited from engaging in the unlawful manufacture, sale, distribution, dispensation, possession or use of any controlled substance or marijuana during the performance of the contract.

K. EMPLOYMENT DISCRIMINATION: (the Rules §10.)

During the performance of any resulting contract, the Contractor agrees that:

1. The contractor will not discriminate against any employee or applicant for employment because of race, religion, color, sex, or national origin, except where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the contractor. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause, including the names of all contracting agencies with which the contractor has contracts of over $10,000.

2. The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that such contractor is an equal opportunity employer. However, notices, advertisements and solicitations placed in accordance with federal law, rule or regulation shall be deemed sufficient for the purpose of meeting the requirements of this chapter.

3. If the contractor employs more than five employees, the contractor shall (i) provide annual training on the contractor's sexual harassment policy to all supervisors and employees providing services in the Commonwealth, except such supervisors or employees that are required to complete sexual harassment training provided by the Department of Human Resource Management, and (ii) post the contractor's sexual harassment policy in (a) a conspicuous public place in each building located in the Commonwealth that the contractor owns or leases for business purposes and (b) the contractor's employee handbook.

4. The contractor shall include the provisions of subdivisions 1, 2, and 3 in every subcontract or purchase order of over $10,000, so that such provisions shall be binding upon each subcontractor or vendor.

L. ENVIRONMENTAL LIABILITY: Any costs or expenses associated with environmentally related violations of the law, the creation or maintenance of a nuisance, or releases of hazardous substances, including, but not limited to, the costs of any cleanup activities, removals, remediations, responses, damages, fines, administrative or civil penalties or charges imposed on the Contractor, whether because of actions or suits by any governmental or regulatory agency or by any private party, as a result of the storage, accumulation, or release of any hazardous substances, or any noncompliance with or failure to meet any federal, state or local standards, requirements, laws, statutes, regulations or the law of nuisance by Contractor (or by its agents, officers, employees, subcontractors, consultants, sub consultants, or any other persons, corporations or legal entities employed, utilized, or retained by Contractor) in the performance of any resulting Contract or related activities, shall be paid by Contractor. This paragraph shall survive the termination, cancellation or expiration of this Contract.

M. EXCLUSIVITY: The University reserves the right to procure goods or services covered under any resulting contract from a third party when, in the University’s sole discretion, it is deemed to be in the University’s best interest.

N. FORCE MAJEURE: Neither party will be responsible for any losses resulting from delay or failure in performance resulting from any cause, event, or occurrence beyond the control and without the negligence of the parties. Such events, occurrences, or causes include, without limitation: war, strikes or labor disputes, civil disturbances, government orders, pandemics, fires, natural disasters, and acts of God.

O. INDEMNIFICATION: Contractor agrees to indemnify, defend and hold harmless the University, its officers, agents, and employees from any claims, damages and actions of any kind or nature, whether at law or in equity, arising from or caused by the use of any materials, goods, or equipment of any kind or nature furnished by the Contractor/any services of any kind or nature furnished by the Contractor, provided that such liability is not attributable to the sole negligence of the University or to failure of the University to use the materials, goods, or equipment in the manner already and permanently described by the Contractor on the materials, goods or equipment delivered.

P. PAYMENT PROVISIONS:

1. By the University:

i. Prompt Payment: (the Rules §42.)

i. The University shall promptly pay for the completely delivered goods or services by the required payment date.

ii. Payment shall be deemed to have been made when offset proceedings have been instituted, as authorized under the Virginia Debt Collection Act (§ 2.2-4800 et seq.) of the Code of Virginia.

iii. Separate payment dates may be specified for contracts under which goods or services are provided in a series of partial deliveries or executions to the extent that such contract provides for separate payment for such partial delivery or execution.

ii. Defect Or Impropriety In The Invoice Or Goods And/Or Services Received: (the Rules §43.)

In instances where there is a defect or impropriety in an invoice or in the goods or services received, the University shall notify the Contractor of the defect or impropriety, if the defect or impropriety would prevent payment by the payment date. The notice shall be sent within 15 days after receipt of the invoice or the goods or services.

iii. Date Of Postmark Deemed To Be Date Payment Is Made: (the Rules §44.)

In those cases where payment is made by mail, the date of postmark shall be deemed to be the date payment is made for purposes of these Rules.

iv. Interest Penalty; Exceptions: (the Rules §44.)

i. Interest shall accrue, at the rate determined pursuant to subsection ii., on all amounts owed by the University to a Contractor that remain unpaid after seven days following the payment date.

However, nothing in this section shall affect any contract providing for a different rate of interest, or for the payment of interest in a different manner.

ii. The rate of interest charged the University pursuant to subsection i. shall be the base rate on corporate loans (prime rate) at large United States money center commercial banks as reported daily in the publication entitled The Wall Street Journal. Whenever a split prime rate is published, the lower of the two rates shall be used. However, in no event shall the rate of interest charged exceed the rate of interest established pursuant to § 58.1-1812 of the Code of Virginia.

iii. Notwithstanding subsection i., no interest penalty shall be charged when payment is delayed because of disagreement between the University and a Contractor regarding the quantity, quality or time of delivery of goods or services or the accuracy of any invoice received for the goods or services. The exception from the interest penalty provided by this subsection shall apply only to that portion of a delayed payment that is actually the subject of the disagreement and shall apply only for the duration of the disagreement.

iv. This section shall not apply to retinae on construction contracts that provides for progress payments, during the period of time prior to the date the final payment is due. Nothing contained herein shall prevent a Contractor from receiving interest on such funds under an approved escrow agreement.

v. Notwithstanding subsection i., no interest penalty shall be paid to any debtor on any payment, or portion thereof, withheld pursuant to the Comptroller's Debt Setoff Program, as authorized by the Virginia Debt Collection Act (§ 2.2-4800 et seq.) of the Code of Virginia, commencing with the date the payment is withheld. If, as a result of an error, a payment or portion thereof is withheld, and it is determined that at the time of setoff no debt was owed to the Commonwealth, then interest shall accrue at the rate determined pursuant to subsection 2. on amounts withheld that remains unpaid after seven days following the payment date.

2. To Contractor:

Under any resulting contract, Contractor is hereby obligated:

i. To submit all invoices for goods/services ordered, delivered and accepted directly to:

a. Old Dominion University Accounts Payable Rollins Hall, Room 2005 Norfolk, Virginia 23529; and

b. invoice@odu.edu

ii. All invoices shall include:

a. Vendor Name, ‘Remit To’ Address, FEIN, or Social Security Number (Individual Contractor);

mailto:invoice@odu.edu

b. Invoice Number, Invoice Date, Payment Terms and Discounts, and Payment Due Date;

c. Purchase Order Number;

d. University Contact;

e. Description of provided goods/services;

f. Quantity Delivered per line item;

g. Unit and Extended Cost per line item; and

h. Total Amount Due

iii. Any payment terms requiring payment in less than 30 days will be regarded as requiring payment 30 days after invoice or delivery, whichever occurs last. This shall not affect offers of discounts for payment in less than 30 days, however.

iv. All goods or services provided shall be billed by the Contractor at the agreed to contract price.

v. Unreasonable Charges. Under certain emergency procurements and for most time and material purchases, final job costs cannot be accurately determined at the time orders are placed. In such cases, Contractors should be put on notice that final payment in full is contingent on a determination of reasonableness with respect to all invoiced charges.

Charges which appear to be unreasonable will be researched and challenged, and that portion of the invoice held in abeyance until a settlement can be reached. Upon determining that invoiced charges are not reasonable, the University shall promptly notify the Contractor, in writing, as to those charges which it considers unreasonable and the basis for the determination. A Contractor may not institute legal action unless a settlement cannot be reached within thirty (30) days of notification. The provisions of this section do not relieve the University of its prompt payment obligations with respect to those charges which are not in dispute.

vi. When applicable, Contractor shall deliver to the University, on or before request for final payment, evidence and certification of compliance (subject only to insubstantial shortfalls and to shortfalls arising from subcontractor default) with the SWAM procurement plan.

Final payment under the contract in question may be withheld until such certification is delivered and, if necessary, confirmed by the agency or University, or other appropriate penalties may be assessed in lieu of withholding such payment.

3. To Subcontractors: (the Rules §45.)Under any resulting contract, Contractor shall be obligated:

i. To pay the subcontractor(s) within seven (7) days of the Contractor’s receipt of payment from the University for the proportionate share of the payment received for work performed by the subcontractor(s) under the contract; or

ii. To notify the University and the subcontractor(s), in writing, of the Contractor’s intention to withhold payment and the reason.

iii. To pay the subcontractor(s) interest at the rate of one percent per month (unless otherwise provided under the terms of the contract) on all amounts owed by the Contractor that remain unpaid seven (7) days following receipt of payment from the University, except for amounts withheld as stated in (2) above. The date of mailing of any payment by U. S. Mail is deemed to be payment to the addressee. These provisions apply to each sub-tier Contractor performing under the primary contract. A Contractor’s obligation to pay an interest charge to a subcontractor may not be construed to be an obligation of the University.

Q. SEVERABILITY: The provisions of any resulting contract shall be deemed to be severable, and should any or more of such provisions be declared or adjudged to be invalid or unenforceable, the remaining provisions shall be unaffected thereby and shall remain in full force and effect.

R. TERMINATION WITH CAUSE:

1. In the event that the Contractor shall for any reason or through any cause be in default of the terms of the contract, the University may give the Contractor written notice of such default by certified mail/return receipt requested.

2. Prior to termination of the contract, the University shall give the Contractor and its surety ten (10) calendar day’s written notice, during which the Contractor and/or his surety may rectify the cause of the termination.

If rectified to the satisfaction of the University within said ten (10) days, the University may rescind the notice of termination. If Contractor does not, the termination for cause shall become effective at the end of the ten-day (10) notice period.

3. In the alternative, the University may postpone the effective date of the termination notice, at its sole discretion, if it should receive reassurances from the Contractor and/or its surety that the causes of termination will be remedied in a time and manner which the University finds acceptable.