RFP202590000582 Executive Compensation Consulting.pdf

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West Virginia University

Request for Proposal (“RFP”)

RFP No. RFP202590000582

For more information about WVU, please visit www.wvu.edu.

TITLE: Executive Compensation Consulting

PROPOSAL DUE DATE: October 4, 2024 at 4:00 PM E.T.

PRE-PROPOSAL MEETING: N/A

PROCUREMENT OFFICIAL: Virgil Cooper vccooper@mail.wvu.edu

I. INTRODUCTION AND OVERVIEW OF SOLICITATION

A. OVERVIEW OF SOLICITATION

West Virginia University (“WVU” or “University”) is initiating this Request for Proposals (“RFP”) to solicit Proposals from qualified firms or individuals (“Proposers”) for the following: Executive Compensation Consulting Services.

B. SOLICITATION SCHEDULE

The following is an anticipated Solicitation Schedule. The University may, in its sole discretion change this schedule at any time. If the University changes dates in the schedule before the deadline for receipt of Proposals, it will do so by an addendum to this RFP. It is each prospective Proposer’s responsibility to check the University’s e-bidding system (“WVU Public Bid Site”) for current information regarding this RFP and its timelines.

RFP Publication September 18, 2024

Question Deadline (posted to Q&A Board) September 23, 2024 at 4:00 PM E.T.

Proposal Due Date (“Due Date”) October 4, 2024 at 4:00 PM E.T.

Anticipated Contract Start Date October/November 2024

C. PRE-PROPOSAL MEETING:

☒ No Pre-Proposal Meeting To Be Held.

II. SCOPE OF SERVICES

http://www.wvu.edu/ https://bids.sciquest.com/apps/Router/PublicEvent?CustomerOrg=WVUMarketplace

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WVU is seeking a qualified firm to provide executive compensation consulting and professional support services. The scope of this RFP is currently for compensation consulting services for the University’s next president.

Responses to this RFP should demonstrate the firm’s competency, qualifications, and experience to provide the University with all aspects of the executive compensation consulting services. The selected firm will work with the WVU Board of Governors, the University’s Presidential Search Committee, the University’s Presidential Search Firm, as well as other University stakeholders as needed, to develop and structure a full compensation package for the University’s next president. Such compensation package must be comparable and competitive with peer universities. Proposers must have an in-depth understanding of the purpose and goals of a higher education institution such as WVU including other flagship, land-grant, and research universities. Firms must also have full market knowledge and understand the challenges and complexities in executive level compensation, as well as maintaining a balance of appealing to the best candidate(s) with the needs and culture of WVU.

The successful Proposer will be expected to assist and advise the WVU Board of Governors, the Presidential Search Committee, the Presidential Search Firm, and other University stakeholders in all matters pertaining to executive compensation. The Proposer shall deliver the following scope of services in providing a thorough executive compensation analysis and full compensation package, including, but not limited to:

• Consult with the WVU Board of Governors, the Presidential Search Committee, the Presidential Search Firm, and other University stakeholders to gain an understanding of the history, structure, culture, operations, and needs of the University and how that culture will impact the compensation structure at the executive level.

• Provide reliable and up-to-date market data, obtained through a market survey, data analysis, historical review, and/or similar means, for determining and developing an executive total compensation package, including base pay, incentive/bonus pay, supplemental retirement plans, such as deferred compensation, and other benefits as determined by the University in conjunction with the Proposer such as housing, vehicle, or memberships, for the executive level role.

• Lead the analysis of and collaborate with the University to determine the appropriate peer institutions for review.

• Evaluate the market for the executive level position opening and provide market intelligence regarding salary and other compensation necessary to attract the best qualified candidates.

• Provide WVU the current market trends and general salary and compensation expectations for the executive level role for similar land-grant, R1 research, and comparable sized universities.

• Develop a comprehensive compensation package including but not limited to analysis, guidance, rationale, and complete compensation design.

• Provide guidance in setting compensation to be compliant with applicable laws, regulations, and standards of good governance.

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• Present the information to the University in a timely manner and in an agreed upon schedule. This may include a written report as well as a formal presentation.

• Assist the University in developing the compensation provisions of a term sheet for an offer of employment for the executive level role.

• Collaborate with the University as well as the Presidential Search Firm to ensure clear communications.

• Maintain confidentiality of communications with candidates, the University, and the Presidential Search Firm.

• Provide these services in accordance with industry best practices and in a fair, impartial, and structured manner.

• Provide other customary and/or necessary services the University may require in connection with the compensation consulting services.

III. RESPONSE REQUIREMENTS & EVALUATION CRITERIA

All responses must be formatted with the items and in the sequence as presented in this Section of the RFP. Except as otherwise set forth herein, Section III outlines the minimum requirements for the preparation and presentation of a response. Failure to comply may result in rejection of the response. The Proposal should be specific and complete in every detail, prepared in a simple and straightforward manner.

Proposers are expected to examine the entire RFP, including all specifications, standard provisions and instructions. Failure to do so will be at the Proposers’ risk. Each Proposer shall furnish the information required by the RFP.

Evaluation Criteria: The following evaluation factors will be used in determining the best-qualified Proposal:

Criteria Allocated Points Experience & Qualifications 35 Plan of Execution & Approach 35 References 20 Cost Proposal 10

Total 100 Points

For each item and qualification in the Scope of Services and Response Requirements Section, submit detailed information regarding your firm’s qualifications and experience as it pertains to the higher education environment. Describe in detail the services your company can provide to WVU, your ability to meet the requirements, your experience in providing the services, and specifically how you will provide the service to the WVU community. This information includes, but it not limited to, the questions and criteria listed within this section.

A. Experience & Qualifications (35 Points)

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Evaluation of Proposers will include a review of the firm’s overall experience, as well as the firm’s experience relevant to WVU and relevant to successfully conduct higher education executive compensation consulting services. Of particular importance will be whether the firm’s experience demonstrates its ability to successfully complete the requirements herein. Each Proposer must address how your firm’s overall experience demonstrates your ability to successfully complete the Scope of Services.

1. Provide a detailed description of the Proposer’s experience in designing compensation packages for executive-level positions in the higher education field, including a list of universities served and executive level positions you previously provided compensation consulting services for in the area of higher education.

2. Explain in detail the Proposer’s experience with higher education institutions comparable to WVU in size and complexity as well as experience with R1 research and land-grant institutions.

3. Provide detailed information on the organizational structure of the Proposer, the history and market position of the firm, the cultural and environmental philosophy of the firm, and value the firm would add to the compensation process for WVU.

4. Provide a statement on emerging market trends and Proposer’s focus/expertise in higher education executive compensation.

5. Provide any ancillary compensation expertise the Proposer holds that may offer further benefits to its higher education clientele.

6. Indicate key positions in Proposer’s organization that will be required to perform the Services described in this RFP, describe the responsibilities for those positions, and identify the individuals who will fill those positions in providing services to WVU (see Item 7 below for additional information requested).

7. Provide names and resumes demonstrating the qualifications of Proposer’s personnel that would perform the Services described in this RFP and would be assigned to the WVU relationship for the duration of the project. Include the following related to the personnel that would perform the Services for WVU:

a. National and regional experience and qualifications of proposed personnel in successfully developing executive level compensation packages;

b. Role and position in Proposer’s firm;

c. Role and responsibility for managing the project for WVU, should

Proposer be selected;

d. Education, experience and background, etc.

8. Disclose whether Proposer has ever had a contract for compensation consulting terminated and if so, provide a detailed explanation of the contract and circumstances surrounding termination.

9. To the extent not already provided in response to this RFP, describe your firm’s qualifications for and plan to provide each of the responsibilities listed in the Scope of Services.

B. Proposer’s Plan of Execution & Approach (35 Points)

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Describe in sufficient detail your firm’s basic approach to developing an executive compensation package for a higher education institution. This is an opportunity to convey the firm’s technical expertise, viewpoint, what distinguishes the Proposer from competitors, and what it could bring to WVU that other firms may not. The explanation must be in sufficient detail to convey to the Evaluation Committee the firm’s knowledge of the subject and skills necessary for the providing a complete compensation package.

While the actual compensation strategy will be developed through close consultation with the University, a proposed compensation strategy is required. Provide a detailed plan for conducting a time-sensitive compensation development for an executive-level position in the higher education field. This detailed proposed compensation strategy must recognize the need to work closely with the WVU Board of Governors, the Presidential Search Committee, and Presidential Search Firm. Include detailed description of strategies and tactics used to ensure a smooth and successful process.

The execution plan and approach should include, but does not need to be limited to the following:

• Proposed timeline for the compensation development, including an identification of the steps of the process completed in each phase and the time allotted for each phase.

• Unique technology applied by the Proposer that aids in the process.

• Proposer’s capabilities in providing assistance during the offer process and coordination with the Search Firm when needed.

• Strategies and/or processes to ensure that the compensation package will yield a competitive and effective package for the executive and WVU.

• Confidentiality policy in relation to the compensation process and any communications associated with the process.

• Include examples of compensation packages assembled for other university executive-level roles. Redaction of certain information is acceptable if required.

C. References (20 Points)

Provide references from five (5) of Proposer’s customers from the past five (5) years for services that are similar in scope, size, and complexity to the Services described in this RFP. These references should be able to speak specifically to Proposer’s ability to develop, design, and deliver executive compensation packages. At least three (3) of the references should include universities with R1 research status and/or land-grant institutions.

Provide the following information for each reference:

• Institution name and address;

• Contact name with email address and phone number;

• Time period in which work was performed;

• Short description of work performed.

D. Cost Proposal (10 Points)

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Proposer is to provide a Not to Exceed fee for full compensation services.

• Rate structure for any travel related expenses conducted by the Proposer’s personnel and the estimated number of trips to WVU campus required.

• The fee proposal must be inclusive of all costs or cost calculations for the complete compensation consulting services.

IV. RFP RULES AND GUIDELINES

A. COMMUNICATIONS

Throughout the procurement process, all communication, outside of those submitted under “Explanations and Clarifications” as described herein, between the Proposer and the University shall be with the Procurement Official identified above. “Proposers” includes subcontractors at all levels and joint venture members, where applicable.

Discussions or communications regarding this solicitation with any other individuals associated in any capacity with the University, its consultants, contractors or members of its Board of Governors, or members of any Evaluation Committee are prohibited, unless otherwise approved in writing by the Procurement Official. Discussions or communications with any other person, regardless of the format, could result in disclosure of proprietary or other competitive sensitive information or otherwise create the appearance of impropriety or unfair competition and, thereby, compromise the integrity of University’s procurement process.

Proposers shall provide immediate written notice to the Procurement Official any time contact has not been limited to the Procurement Official concerning this solicitation, whether initiated by the Proposer or by other University employees, consultants, contractors or members of its Board of Governors. Any violation of this prohibition may result in the disqualification of the Proposer from further participation in this solicitation, and from award of any contract or subcontract under this solicitation.

By submitting, the Proposer certifies that it is in compliance with the above.

B. REVISIONS, EXPLANATION, AND CLARIFICATIONS TO THE RFP

Any explanation or clarification desired by a Proposer regarding the meaning or interpretation of any part of this solicitation must be submitted in writing by an authorized representative of the Proposer through the Q&A Board on the WVU Public Bid Site with a clear cross-reference to the relevant RFP section. Requests for explanations or clarifications must be submitted on or before the deadline for questions. Requests for clarification received after this deadline may not be considered and the University is under no obligation to address them.

Written explanations or clarifications provided to a Proposer concerning an interpretation of the solicitation shall be furnished to all Proposers if such information is necessary in submitting Proposals or if the lack of such information would be prejudicial to uninformed Proposers. The Proposer must check the Q&A Board throughout the

Page 7 of 15 Last Updated 7/2024 procurement process to view all applicable information. The University is under no further obligation to ensure that Proposers receive explanations or clarifications.

Oral explanations or clarifications given before the award of any contract, at any pre-proposal conferences or otherwise, do not serve to modify the solicitation and will not be binding on the University.

Suggestions for RFP revision may be submitted to the Procurement Official by posting on the WVU Public Bid Site. This is an opportunity for prospective Proposers, prospective partnership members, and others to provide feedback to inform RFP revisions if needed.

The University also reserves the right to cancel or to reissue the RFP, in whole or in part, prior to execution of a contract.

C. MODIFICATION/ACKNOWLEDGMENT OF SOLICITATION ADDENDA

The University reserves the right to modify or amend the solicitation. If it is amended, then all terms and conditions which are not modified remain unchanged.

When the solicitation is modified or amended, the Procurement Official shall post a solicitation addendum on the WVU Public Bid Site. The University is under no further obligation to ensure that Proposers receive addenda.

An Addendum may be issued for many reasons including, but not limited to, (a) making changes or corrections to the RFP; (b) clarifications, revisions, additions or deletions to the goods or services specifications; (c) providing information necessary to ensure fair and competitive solicitation (i.e. used in cases where one Proposer has received information that other Proposers have not); (d) extension or postponement of the Due Date, or other RFP date, due to University need or Proposer request; or (e) any other reason determined by the Procurement Official to be necessary or advantageous to the University.

The CPO or designee may extend the Proposal Due Date, if doing so is in the best interest of the University. Additionally, Proposers who contact the Procurement Official prior to the Due Date, may request to extend the Due Date, such issuance of an extension is at the University’s sole discretion. Such postponement shall be accomplished through an Addendum to the RFP, which shall be published and distributed through the WVU Public Bid Site.

D. PREPARATION OF PROPOSALS – GENERAL

1. Examine the Entire Solicitation. Prior to submission of Proposals, Proposers are expected to thoroughly examine all provisions of and Attachments, Appendices, and/or Addendums to the solicitation, whether incorporated by reference or otherwise.

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Failure to do so will be at the Proposer’s risk and will not be a basis for the Proposer to request relief of any kind prior to or after contract award.

2. Exceptions to Solicitation. If the Proposer cannot accept WVU’s terms, conditions or requirements, the Proposer shall raise their exceptions in their Proposals. It is the University’s sole discretion as to whether or not it will accept or deny any exceptions raised by Proposers.

3. Furnish Information. Proposers shall furnish all information required by the

Solicitation. Unnecessarily elaborate Proposals or lengthy presentations are not desired or required; however, Proposals should be clear, concise, and include sufficient detail for effective evaluation. The Proposer is cautioned that it is the Proposer’s sole responsibility to submit information related to the evaluation categories, and that WVU is under no obligation to solicit such information if it is not included in its Proposal. Failure by the Proposer to submit such information may cause an adverse impact on the evaluation of its Proposal.

4. General Format. To provide uniformity and to facilitate comparison of Proposals, all information submitted should clearly refer to the page number, section, or other identifying reference in this RFP. All information submitted must be noted in the same sequence as its appearance in this RFP.

If a pricing document is provided to Proposers, all pricing must be completed within that document. Failure to utilize supplied pricing documents may result in disqualification from the RFP process.

5. Required Signatures. All Proposals must be submitted by an individual authorized to extend a formal Proposal. The University accepts electronic signatures. By submitting the Proposal, the Proposer certifies compliance with the signature authority required.

6. Alternate Proposals. Proposers may submit more than one Proposal. All Proposals must comply with the requirements of the RFP except that additional Proposals may incorporate, by reference, repetitive information which is provided in the original Proposal. Such alternative proposals should be clearly marked as an alternate to clearly delineate from proposer’s official proposal.

7. Proprietary Information or Other Confidential Information. Proposals submitted in response to this solicitation shall become the property of the University. All Proposals received shall remain confidential until the contract(s), if any, resulting from this RFP are signed by an authorized representative of the University and the Apparent Successful Proposer; thereafter, the Proposals shall be deemed public records as defined in W. Va. Code § 29B-1-1, et seq. commonly referred to as the West Virginia Freedom of Information Act.

Proposer must clearly designate any information in the Proposal that the Proposer desires to claim as proprietary and exempt from disclosure under the provisions of W.

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Va. Code § 29B-1-1 et seq. or other state or federal law that provides for the nondisclosure of your document. The page must be identified, as well as the particular exception from disclosure upon which the Proposer is making the claim. Each page claimed to be exempt from disclosure must be clearly identified by the word “Confidential” printed on the lower right-hand corner of the page.

The University will consider a Proposer’s request for exemption from disclosure;

however, the University will make a decision predicated upon W. Va. Code § 29B-1- 1 et seq. Designating the entire Proposal exempt from disclosure will not be honored.

The Proposer must be reasonable in designating information as confidential. If any information is designated as proprietary in the Proposal, such information will not be made available until the affected Proposer has been given an opportunity to seek a court injunction against the requested disclosure if such time can be provided without violation of complying with W. Va. Code § 29B-1-1 et seq.

8. Use of Subcontractors. If the Proposer intends to use subcontractors to perform any portion of the work or to provide any of the parts or equipment described in this RFP, this must be clearly stated in the Proposal. The Proposer’s response must include a description of which portion(s) of the work that will be sub-contracted and the names and addresses of potential subcontractors under the contract. The University reserves the right to reject any proposed Subcontractor of the Proposer. Proposer may not change or revise any subcontractor after the Proposal is submitted without the written approval of WVU.

9. Proposal Preparation Costs. The University shall not be liable for any costs incurred by a Proposer in responding to this RFP, regardless of whether the University awards a contract through this process, cancels this RFP for any reason, or contracts through another RFP or another process.

10. Errors and Omissions. The Proposer is expected to comply with the true intent of this

RFP taken as a whole and shall not avail itself of any errors or omissions to the detriment of the University. Should the Proposer suspect any error, omission, or discrepancy in the scope of work or other portions of the RFP, the Proposer shall immediately notify the University, in the Q&A Board, and the University shall issue written instructions to be followed. The Proposer is responsible for the contents of its Proposal and for satisfying the requirements set forth in the RFP.

11. Firm Offer Period. Offers must be kept firm for acceptance by the University for at least one hundred twenty (120) days after the date that Proposals are due. Proposals with acceptance periods of less than one hundred twenty (120) days may be considered non-responsive. The Proposer may specify a longer period than indicated here. If the Proposer indicates no time period for acceptance, the Proposal will be considered firm for one hundred twenty (120) days and thereafter until written notice to the contrary is received.

E. PROPOSAL SUBMISSION & FORMAT

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1. Proposal Submission.

The Proposal must be submitted through the WVU Public Bid Site no later than the Due Date and Time listed on the first page of this RFP. The University does not assume responsibility for problems with Proposer’s computer/servers or other electronic issues.

Proposers should allow sufficient time to ensure timely receipt of the Proposal by the University. Late Proposals will not be accepted and will be automatically disqualified from further consideration unless the University’s electronic submission method is found to be at fault. If you are having technical difficulty, you may contact the Procurement Official prior to the submission Due Date and Time to possibly arrange submission thru email, Dropbox or a comparable file sharing method.

Proposals may not be transmitted by fax, email, or mail unless prior permission is received from the Procurement Official.

2. Proposal Format for Submission. The Proposal response shall be set out in the format outlined in Section III (“Response Requirements and Evaluation Criteria”) of this RFP.

These sections represent the minimum amount of information required by the University. Proposers are encouraged to add content if needed; however, unnecessarily elaborate Proposals are discouraged. When possible, the Proposal shall be submitted in a single file PDF, unless otherwise allowed or requested within this RFP, with an accompanying Excel file, when needed. Zipped files should not be used for submission of Proposals.

F. PROPOSAL MATERIALS

The Proposal material and accompanying documentation submitted in response to the RFP becomes the property of the University upon submission to the University and may be appended, if necessary, to any formal document which would further define or expand the contractual relationship between the University and the Proposer. All of the material will be considered as part of this RFP.

G. WITHDRAWAL AND MODIFICATION OF PROPOSALS

Proposal withdrawals shall be submitted through the WVU Public Bid Site prior to the Due Date and Time set forth in the RFP. Withdrawals must be made on company letterhead and signed by an authorized representative of the Proposer. Once withdrawn, the Proposer may modify and resubmit their Proposal before the Due Date and Time.

Any modification of a Proposal should be prepared on company letterhead, signed by an authorized representative, and state that the new document supersedes or modifies the prior Proposals, and submitted to the University as required pursuant to this RFP.

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H. REJECTION OF PROPOSALS

The University reserves the right at its sole discretion to reject any and all Proposals received without penalty and not to issue a contract as a result of this RFP. If any Proposal is rejected, a written explanation prepared by the CPO, or designee, shall be noted in the Procurement File.

I. LATE SUBMISSIONS

Any Proposal, withdrawal, or modification received after the Due Date and Time will not be considered, unless the University’s electronic submission method is found to be at fault. If Proposer encounters technical difficulty, Proposer may contact the Procurement Official prior to the submission Due Date and Time to potentially arrange other submission methods. The electronic clock on the WVU Public Bid Site shall be considered the official timepiece used to determine whether the Proposal, withdrawal, or modification was late.

J. PROPOSAL EVALUATION

1. Proposal Opening. Proposals, modifications, and withdrawals shall be opened via the

WVU Public Bid Site. Upon receipt of Proposals, the Procurement Official will initiate the evaluation and selection process, to include a general review to determine if Proposals comply with the solicitation provisions and contain the required information and submittals. If they do not, the Procurement Official may reject them.

2. Evaluation Committee. An Evaluation Committee will be appointed to evaluate Proposals. Appointments are at the sole discretion of the University.

3. Substantiation of Proposals. The University reserves the right to require each

Proposer to substantiate any aspect of the Proposal, its own qualifications for providing the services required, and any other area of interest relative to the Proposal response.

4. Evaluation Criteria. The evaluation factors identified in Section III of this RFP will be used in determining the best qualified Proposal that is most advantageous to the University. The Evaluation Committee shall utilize the consensus scoring method as outlined in Appendix C of the Procurement Manual, unless otherwise approved by the Chief Procurement Officer or designee.

5. Oral Presentations. The University may, after evaluating the written Proposals, elect to schedule oral presentations with requested Proposers. Should oral presentations become necessary, the University will contact the selected Proposers from the written evaluation to schedule a date, time, and location. Commitments made by the Proposer at the oral interview, if any, will be considered binding. The University may update initial scoring based on Proposer interviews at its discretion.

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6. Discussions/Negotiations. If discussions or negotiations occur, they may include both the technical and financial aspects of the Proposals.

7. Best and Final Offers. The University may initiate a best and final offer as part of the solicitation process between Proposers who the University believes are in a competitive range. In addition, when Proposals are evaluated and two or more Proposers receive the same Consensus Score, the tie shall be broken, and an award made by allowing the tied Proposers to make a best and final offer. If a tie is not broken by a “best and final offer,” then the tie may be broken by a flip of a coin, or any other impartial method deemed prudent by the CPO.

8. Final Negotiations of Terms/Conditions with Best Proposer. Following the selection of the best Proposal, the University and selected Proposer may enter into negotiations to arrive at mutually agreeable terms and conditions. The contents of the selected Proposal may become contractual obligations of the contract. Failure of the Proposer to accept or negotiate, in good faith, the Proposal obligations into a contract may result in rejection of the Proposal. If the University is unable to negotiate a mutually satisfactory contract with the best Proposer, negotiations shall be formally ended with the Proposer and begun with the next best Proposer. Negotiations shall be undertaken in this manner until a mutually satisfactory contract has been negotiated or the solicitation is canceled. The University will demonstrate “good faith” in reaching a mutually acceptable contractual agreement. Notwithstanding this, there are certain conditions that are unacceptable to the University. See Section V of this RFP for a non-exhaustive list of provisions that are unacceptable to the University.

K. AWARD OF CONTRACT

1. Basis of Award. The University will award a contract based upon the evaluation of

Proposals. The University may award a contract, based solely on initial Proposals.

Accordingly, initial Proposals should be submitted on the most favorable terms from both a technical and price standpoint.

2. Determination of Responsibility. A responsible Proposer is one who affirmatively demonstrates to the University that it has adequate financial resources and the requisite capacity, capability, and facilities to perform the contract, has a satisfactory record of performance on other comparable projects, has a satisfactory record of integrity and business ethics, and is otherwise qualified and eligible to receive award under the solicitation and laws or regulations applicable to the procurement. The University reserves the right to investigate the capabilities of Proposers, confirm any part of the information furnished by a Proposer, and require other evidence to determine that the Proposer is responsible.

3. Rejection of Proposals & Waiver of Minor Information/Irregularities. The University reserves the right to reject any or all Proposals in part or in total for any reason, to accept any Proposal if considered best for its interest, and to waive informalities and

Page 13 of 15 Last Updated 7/2024 minor irregularities in Proposals received, commensurate with best public procurement practices.

4. Notice of Award. Any award of a contract resulting from this RFP will be made only by an authorized WVU Employee.

L. CANCELLATION OF SOLICITATION

The University may cancel this solicitation at any time before or after receipt of Proposals.

M. COMPLAINTS OR PROTESTS

Complaints or protests associated with this solicitation must be submitted in accordance with the University’s Procurement Manual.

V. REQUIREMENTS FOR FINAL CONTRACT

The University may provide a sample contract and its terms and conditions as an Attachment to this RFP. If the University provides a sample contract, the Apparent Successful Proposer will be expected to enter into a contract that is substantially the same as the sample contract and its terms and conditions. If no sample contract is provided, the University and the Apparent Successful Proposer shall enter negotiations, in good faith, to mutually agree on a bi-lateral contract for such services related to this RFP. In no event is a Proposer to submit its own standard contract terms and conditions in response to this solicitation, unless specifically requested by the University. The Proposer may submit questions or exceptions to any terms and conditions of a provided sample contract or pertaining to the “Prohibited State Terms” listed below to this solicitation. All exceptions to the contract terms and conditions or “Prohibited State Terms” must be submitted through the WVU Public Bid Site. The University will review requested exceptions and accept or reject the same at its sole discretion.

A. PROHIBITED TERMS

WVU’s status as a state agency imposes certain restrictions on its contracting activities that a private university or company does not face. Many standard clauses typically found in commercial contracts cannot be accepted by WVU. The restrictions are based on constitutional and statutory prohibitions. The following provisions, without limitation, are some of the most common provisions that we must strike when negotiating an agreement or contract.

1. Indemnification and/or Hold Harmless. State agencies are constitutionally prohibited from agreeing to indemnify third parties.

2. Limitation of Liability. WVU does not have the authority to prejudice the rights of the State of West Virginia to sue or otherwise enforce a contract by agreeing to a limit on or a waiver of liability.

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3. Governing Law of or Venue in a State Other than West Virginia. West Virginia

University does not have statutory authority to accept the governing laws of or venue in another state. As an alternative, the University may agree to be silent on such issues.

4. Confidentiality. WVU is subject to the West Virginia Freedom of Information Act (W.

Va. Code §29B-1-1 et. seq.). Thus, WVU cannot agree to keep the terms and conditions of a contract or agreement confidential.

5. Attorney Fees. As a public institution, the University cannot agree to pay attorney’s fees, court costs, or other litigation expenses in the event of a dispute as that would be a violation of the constitutional gratuities clause.

6. Damage Clauses. Damage clauses that include indirect or incidental damages as additional types of damages payable by WVU is not acceptable.

7. Late Payment/Cancellation Charges/Interest Charges. State agencies are prohibited from agreeing to pay late payments or cancellation charges.

8. Taxes. The State is exempt from most taxes and generally will not agree to contract language which requires the payment of taxes. The University will not agree to reimburse the vendor for the payment of taxes.

9. Binding Arbitration. The University has no statutory authority to agree to binding arbitration and the State Attorney General has exclusive authority and control over all matters of litigation or potential litigation involving State agencies. Thus, University has no authority to limit the type or scope of judicial action.

10. Interest. The University lacks statutory authority to agree to the payment of interest.

11. Funding Clause. The University cannot commit funds on multi-year contracts across

Fiscal Years. All contracts across Fiscal Years are subject to fund availability and legislative appropriation. The University has a right to terminate due to non-funding outside the current Fiscal Year. Such termination shall not be an event of default.

B. ELECTRONIC PAYMENT

The University strongly prefers to utilize electronic payments in its transactions. The successful Proposer will be provided a form to complete with the contract to authorize such payment method.

C. INSURANCE COVERAGE

☒ Proposer shall be subject to the standard insurance provisions in this Section.

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OR

☐ Proposer shall be subject to the insurance provisions in Attachment A

The successful Proposer shall, at its own expense, obtain and keep in force insurance coverage which shall be maintained in full force and effect during the term of the contract. The Proposer shall furnish evidence in the form of a Certificate of Insurance that insurance shall be provided, and a copy shall be forwarded to the University prior to the contract effective date. Additionally, the Proposer is responsible for ensuring that any subcontractors provide adequate insurance coverage for the activities arising out of subcontracts.

The successful Proposer shall procure, at its own expense, and maintain for the duration of the PO/contract, the following insurance coverage from insurers licensed or registered to do business in the State of West Virginia: (a) Commercial general liability insurance of not less than $1,000,000 per occurrence and $2,000,000 general aggregate; (b) Worker’s Compensation insurance in accordance with applicable statutory limits (c) Commercial Automobile insurance in the amount of $1,000,000 per occurrence for all owned, non-owned, hired. leased, rented, and employee non-owned vehicles, (d) where applicable, professional liability insurance of $1,000,000 per claim/loss and $2,000,000 annual aggregate, with proof that coverage shall remain in effect for a minimum of three years from the date of completion of the project, Supplier shall provide such other insurance as may be required by law. All insurance carried by Supplier in connection with the Services shall list University as an additional insured and such insurance shall be primary and not contributory as to any other insurance the University may have in effect.

The Supplier shall provide a certificate of insurance to the University evidencing required coverage prior to commencement of the Services All policies shall provide a minimum of thirty (30) calendar days’ written notice prior to cancellation or material change. The insurance company(ies) providing the above-described coverage shall have an AM Best Rating of no less than (A-) excellent.