RFP+Minot+Fiber.docx

INFORMATION TECHNOLOGY DEPARTMENT

4201 NORMANDY STREET

BISMARCK, ND 58503

REQUEST FOR PROPOSAL (RFP)

RFP Title: Minot Metro Dark Fiber RFP Number: 112-2448 Issued: January 8, 2024

TABLE OF CONTENTS

ATTACHMENTS

1 Scope of Work 2 Technology Contract

SECTION ONE – INSTRUCTIONS

Purpose of the RFP The state of North Dakota, acting through its Information Technology Department (the STATE) is soliciting proposals for dark fiber in Minot, North Dakota.

Definitions For the purposes of this RFP, the acronyms and defined terms are as follows:

Procurement Officer Contact Information The Procurement Officer is the point of contact for this RFP. Offerors shall direct all communications regarding this RFP to the Procurement Officer. Please do not add the Procurement Officer to any distribution list.

PROCUREMENT OFFICER: Tina M Berger EMAIL: BergerTina@nd.gov

PHONE: (701) 328-9062

TTY Users call: 7-1-1

A person or firm interested in submitting a proposal should ensure all communications related to the procurement are only with the designated point of contact. This section does not restrict communication with state officials or any member of the legislative assembly unless the state official or member of the legislative assembly is involved directly with the procurement for which the person is interested or has submitted a bid or proposal (N.D.C.C. § 54-44.4-01.1).

Engaging in unauthorized communication or seeking to obtain information about an open solicitation with any state employee or official other than the responsible Procurement Officer or designee is sufficient grounds for suspension or debarment. [N.D.A.C. § 4-12-05-04(7)]

RFP Schedule

Assistance to Individuals with a Disability Contact the Procurement Officer, as soon as possible, if an individual with a disability needs assistance with the RFP including any events in the RFP schedule so reasonable accommodations can be made.

Secretary of State Registration Requirements The North Dakota Secretary of State has registration requirements for individuals and businesses transacting business in North Dakota. If the successful Offeror is determined to have a registration requirement with the North Dakota Secretary of State, they must be registered before the contract award and registration must remain active for the duration of the contract period (N.D.C.C. § 54-44.4-09.1)

· Check the Business Records database to see if a business is registered.

· Contact Secretary of State's office by email or call 701-328-2900 (choose menu item 2, then option 1).

· If you need to register, fees apply.

· Vendors may need to obtain businesses licenses. See the list of licenses required of businesses in the State of North Dakota. The link includes information on who to contact, application fees, renewal dates, and the legal reference.

Bidders List Registration Individuals or business entities desiring to be notified of bidding opportunities may apply to be placed on the Bidders List. (N.D.C.C. § 54-44.4-09) Bidders Lists are used to notify vendors when solicitations are issued on the State Procurement Office Online system (SPO Online). Placement on the Bidders List does not guarantee a vendor will receive notice of every solicitation (N.D.A.C. § 4-12-05-01). There are no fees to register as a bidder. The online application form requests contact information for the receipt of solicitation notices. The Bidders List application and SPO Online system use commodity codes to identify categories of goods, services, and information technology.

The commodity codes used for this solicitation are: 838-29 and 915-79.

Visit the OMB website for instructions and the online Bidders List Application:

Bidders List Registration Website

For assistance with Bidders List Registration, contact State Procurement Help Desk at 701-328-1728 or infospo@nd.gov.

State Procurement Website – SPO Online This RFP and any related amendment and notices will be posted on the North Dakota Office of Management and Budget website - State Procurement Online system. Offerors are responsible for checking this website to obtain all information and documents related to this RFP: https://apps.nd.gov/csd/spo/services/bidder/main.htm. Select “Recent Solicitations”. Recent Solicitations are listed by close date.

Notices related to this RFP will be sent to the Bidders List for the needed commodity or service and other known potential offerors.

Offerors not having completed the Bidders List registration may request to receive notices related to this RFP by contacting the Procurement Officer in writing with the following information: RFP title, business name, contact person, mailing address, telephone number, and email address.

Deadline for Questions and Objections Offerors should carefully review the RFP including all attachments. Offerors may ask questions to obtain clarification, request additional information, or object to material in the RFP. Questions and objections must be submitted to the Procurement Officer in writing by the deadline identified in the RFP schedule. The Procurement Officer may elect to respond to questions received after the deadline. If no deadline is specified, questions or objections must be received at least seven days prior to the proposal receipt deadline – Solicitation Closing.

Questions and objections should include a reference to the applicable RFP section or subsection. Email is the preferred method of submission with the RFP number cited in the email subject line.

Responses to questions and requests for clarifications will be distributed as a solicitation amendment, unless the question can be answered by referring the offeror to a specific section of the RFP.

Preproposal Conference or Site Inspection The STATE will not hold a preproposal conference or site inspection for this RFP.

Offer Held Firm Offerors must hold proposals firm for at least 180 days from the deadline for receipt of proposals (Solicitation Closing). The STATE may send a written request to all offerors to hold their offer firm for a longer period time of time.

Offeror Responsible for Costs Offeror is responsible for all costs associated with the preparation, submittal, and evaluation of any proposal including any travel and per diem associated with demonstrations and presentations.

All proposals and other material submitted become the property of the STATE and may be returned only at the STATE's option.

Taxes The STATE is not responsible for and will not pay itemized local, state, or federal taxes. Purchases of tangible personal property made by a state government agency is exempt from sales tax. The state sales tax exemption number is E-2001, and certificates will be furnished upon requested by the purchasing agency. The contractor must provide a valid Vendor Tax Identification Number as a provision of the contract.

The purchasing agency will determine if services provided under this contract are 1099 reportable. The purchasing agency may require the contractor to submit a W9.

The state tax exemption number should not be used by contractors in the performance of a contract.

A contractor or service provider performing any contract, including service contracts, for the United States Government, State of North Dakota, counties, cities, school districts, park board or any other political subdivisions within North Dakota is not exempt from payment of sales or use tax on materials, tangible personal property, and supplies used or consumed in carrying out contracts. In these cases, the contractor is required to file returns and pay sales and use tax just as required for contracts with private parties. Contact the North Dakota Tax Department at 701-328-1246 or visit its website at https://www.nd.gov/tax/tax-resources/ for more information.

A contractor performing any contract, including a service contract, within North Dakota is also subject to the corporation income tax, individual income tax, and withholding tax reporting requirements, whether the contract is performed by a corporation, partnership, or other business entity, or as an employee of the contractor. In the case of employees performing the services in the state, the contractor is required to withhold state income tax from the employees' compensation and remit to the state as required by law. Contact the North Dakota Tax Department at 701-328-1248 or visit its website for more information.

Solicitation Closing – Late Proposals Rejected An offeror is responsible for ensuring its proposal is received by the STATE prior to Solicitation Closing identified in the RFP schedule. A solicitation amendment will be issued if the proposal receipt deadline is changed. An offeror may contact the Procurement Officer to inquire whether its proposal has been received. Proposals delivered late will be rejected pursuant to N.D.A.C. § 4-12-08-13.

Amendment and Withdrawal of Proposals Offeror may amend, supplement, or withdraw proposal prior to the Solicitation closing deadline. No changes will be accepted after the Solicitation closing deadline. After the Solicitation closing deadline, Offeror may make a written request to withdraw proposal and provide evidence that a substantial mistake has been made, and the STATE may permit withdrawal.

Proposal Opening A public opening will not be held.

Proposals Subject to North Dakota Open Record Law All proposals and other material submitted become the property of the STATE and may be returned only at the STATE's option. All proposals and related information, including detailed cost information, are exempt records and will be held in confidence until an award is made, in accordance with N.D.C.C. § 54-44.4-10(2).

Offerors may make a written request that trade secrets and other proprietary data contained in proposals be held confidential. Material considered confidential by the offeror must be clearly identified, and the offeror must include a brief statement that sets out the reasons for confidentiality. See the North Dakota Office of the Attorney General website for additional information.

After award, proposals will be subject to the North Dakota open records law. Records are closed or confidential only if specifically stated in law. If a request for public information is received, the Procurement Officer, in consultation with the Office of the Attorney General, will determine whether the information is an exception to the North Dakota open records law, and the information will be processed appropriately.

News Releases Offerors shall not make any news releases related to this RFP without prior approval of the STATE.

Conflict of Interest Under state laws and rules, a state employee or official shall not participate directly or indirectly in a procurement when the state employee or officials knows of a conflict of interest. Potential conflicts of interest include state employees or their immediate family members employed by the firm, seeking employment with the firm, or with a financial interest in the firm. Potential conflicts of interest will be addressed in accordance with N.D.A.C. § 4-12-04-04., N.D.C.C. § 12.1-13-03.

Persons employed by the State of North Dakota, or within one year thereafter, may be prohibited from acquiring a pecuniary interest in a public contract or transaction. Offerors should review N.D.C.C. § 12.1-13-02 to ensure compliance and avoid such conflict(s) of interest.

Attempt to Influence Prohibited Offerors must not give or offer to give anything to a state employee or official anything that might influence or appear to influence procurement decisions. Suspected attempt to influence will be handled in accordance with N.D.A.C. § 4-12-04-05.

Collusion Prohibited Offerors must prepare proposals independently, without collusion. Suspected collusion will be handled in accordance with N.D.A.C § 4-12-04-06.

Protest and Appeal An interested party may protest a solicitation pursuant to N.D.C.C. § 54-44.4-12 and N.D.A.C. § 4-12-14-01. When a solicitation contains a deadline for submission of questions and objections, protests of the solicitation will not be allowed if these faults have not been brought to the attention of the Procurement Officer before the specified deadline.

An offeror that has submitted a response to a solicitation and is aggrieved may protest an award or notice of intent to award pursuant to N.D.C.C. § 54-44.4-12 and N.D.A.C. § 4-12-14-02. The protest must be submitted in writing to the Procurement Officer during the protest period, which is seven calendar days beginning the day after the notice of intent to award is issued.

The protestor may appeal the decision of the Procurement Officer to the Director of Office of Management and Budget (OMB) within seven calendar days after receiving notice of the decision pursuant to N.D.C.C. § 54-44.4-12 and N.D.A.C. §4-12-14-03.

specifications prepared by non-state personnel When a purchasing agency has specifications prepared by someone other than a state employee or official on behalf of the state, that person or business entity must be excluded from submitting bids or proposals in accordance with N.D.A.C. § 4-12-06-06.

Supplier Registration (Payee) The successful Offeror will be required to complete Supplier Registration, if not already registered as a Supplier. Any individual or business who will be receiving payment from a state agency or higher education institution must complete a registration process to collect important financial and taxpayer information. Payments are generally made by check or automatic clearing house (ACH), and taxpayer information must be collected in compliance with IRS requirements. The State and North Dakota University System (NDUS) have separate financial systems and vendor registration processes.

SECTION TWO – SCOPE OF WORK

Scope of Work The STATE currently utilizes dark fiber to connect various sites located in Minot Metro area. The STATE is seeking Offerors who will lease dark (i.e. non-lit) fiber optic cabling to connect existing locations in Minot Metro area to the STATE.

Information Technology Solution The STATE has developed the Attachment 1 – Scope of Work: ‘2.1 Information Technology Solutions’ tab to describe the specifications for the proposed solution. Offerors must provide a full response to each item number without cross referencing other sections of the proposal. Offerors must use the table format and maintain numbering provided by the STATE to respond to each item number. Attachments, documents, or samples must be clearly referenced where in the response they can be found in the applicable item number.

CUSTOMER SERVICE, EXPERIENCE AND QUALIFICATIONS

The STATE has developed the Attachment 1 – Scope of Work: ‘2.2 CS, Experience & Quals’ tab to describe the Offeror’s customer service, experience, and qualifications. Offerors must provide a full response to each item number without cross referencing other sections of the proposal. Offerors must use the table format and maintain numbering provided by the STATE to respond to each item number. Attachments, documents, or samples must be clearly referenced where in the response they can be found in the applicable item number.

SECTION THREE – PROPOSAL

Proposal Preparation The STATE discourages overly lengthy and costly proposals. An offeror must prepare its proposal using the prescribed proposal format and provide all the requested information; this will enable the proposal to be evaluated fairly and completely. If an offeror submits more than one proposal, each proposal must be prepared in accordance with these instructions.

Each proposal will include a Technical Proposal and a Cost Proposal prepared in accordance with these instructions. The Technical Proposal and a Cost Proposal must be submitted as separate documents, clearly labeled with the name of the Offeror, and marked “Technical Proposal” and “Cost Proposal.” Costs must not be revealed in the Technical Proposal. Options may be discussed in the technical proposal, but all cost information must be in the Cost Proposal only. DO NOT submit documents that are embedded into proposal documents or that contain links to documents on an external website.

Proposal submission instructions Sealed proposals are required; therefore, proposals cannot be submitted by email to the Procurement Officer. Offerors may email proposals to a third party to place in a sealed envelope and deliver by Solicitation Closing.

UPLOAD RESPONSE THROUGH THE STATE PROCUREMENT ONLINE SYSTEM (SPO ONLINE)

Offeror must electronically submit proposals through the State Procurement Office Online system (SPO Online) by the Solicitation Closing deadline.

DO NOT WAIT UNTIL THE “LAST MINUTE” TO SUBMIT A RESPONSE. Recommend uploading response 24 hours prior to the Solicitation Closing deadline.

Offeror must begin the electronic submission process well in advance of the Solicitation Closing deadline to allow for transmission and resolution of any technical difficulties. Be advised that the STATE is not responsible for an Offeror’s failure to timely submit a proposal due to any technical difficulties. If you experience any technical difficulties contact the Procurement Officer or the State Procurement Office at infospo@nd.gov or 701.328.2740.

If documents are in the process of being uploaded when the Solicitation Closing deadline occurs, the upload process will stop. The attempted submission will not be uploaded successfully and is ineligible for consideration. The STATE takes no responsibility for electronic submissions that are captured, blocked, filtered, quarantined, or otherwise prevented from uploading by any anti-virus or other security software.

1. This solicitation is posted on SPO Online at: https://apps.nd.gov/csd/spo/services/bidder/main.htm

2. Select “Recent Solicitations” and find this solicitation. Solicitations are listed by close date.

3. Use “Upload Response” to upload a maximum of five (5), clearly labeled documents before the Solicitation Closing deadline provided in the RFP Schedule.

4. Offeror must upload their Technical Proposal and Cost Proposal in separate files.

5. The maximum file size allowed is 50mb per file.

6. There is a 50 character file name limitation for the document being uploaded.

7. There is 75 character limit in the TITLE field within SPO Online.

8. All SPO Online field entries must be alphanumeric. Dashes and underscores are allowed; however, the system DOES NOT accept other special characters such as apostrophe, & symbol, quotation marks, etc.

9. DO NOT submit documents that are embedded (zip files), movies, wmp, encrypted, or mp3 files.

10. Offeror will receive an email confirmation from infospo@nd.gov that the upload response was received including the “File Description” for the uploaded files. Review this email to ensure all files were successfully uploaded. If Offeror DOES NOT receive an email confirmation, the upload was NOT successful, and the files will need to be uploaded again. If Offeror does not receive an email confirmation after the reattempt, contact the Procurement Officer or the State Procurement Office at infospo@nd.gov or 701.328.2740.

Visit https://www.omb.nd.gov/sites/www/files/documents/doing-business-with-the-state/procurement/spo-electronic-response-external-job-aid.pdf for the SPO Electronic Response Job Aid which describes how to submit an electronic response.

proposal format Prepare the technical proposal and cost proposal in accordance with these instructions. Each file must be submitted as a separate document, clearly labeled with the name of the Offeror and marked “Technical Proposal” and “Attachment 1 Scope of Work”.

Technical Proposal (PDF or MS Word) – Format the proposal with the following labeled sections:

Section 1 – Cover Letter Section 2 – RFP Amendments Section 3 – Contract Provisions Section 4 – Open Records and Confidentiality Section 5 – Supporting Documentation

Do not embed files into the document.

Attachment 1 - Scope of Work (Excel) – Format the proposal with the following labeled sections:

2.1 Info Tech Solutions tab

2.2 CS, Experience & Qual tab

Locations of Work-Cost tab

Offer must create and verify that the file uploaded and/or submitted meets accessibility standards for people with disabilities.

Technical Proposal Section 1 – Cover Letter Proposals shall include a cover letter signed by an individual with authority to bind the offeror that includes the following:

1. The name of the offeror, name of the person to contact regarding the proposal, email address, telephone number, and mailing address.

2. A statement that the offeror has read and agrees to comply with the requirements stated in this Request for Proposal.

3. A statement that the offeror’s proposal accurately describes the information technology solution and services being offered to the STATE.

4. A statement indicating whether the offeror or its employees or subcontractors working on the contract have an apparent or actual conflict of interest. (Offerors are instructed to review the “Conflict of Interest” provisions in the RFP Section 1 “Instructions.”) Section 2 – RFP Amendments Provide signed copies of all Solicitation Amendments issued by the STATE that were required to be acknowledged by offerors.

Section 3 – Contract Provisions

0. Contract Offeror shall review Attachment 2 - Technology Contract.

The proposal must include a copy of the Attachment 2 - Technology Contract completed according to the instructions in the attachment.

Offerors are not to submit their own standard terms and conditions with their proposals. Offeror should address the specific language in the attached contract and submit any proposed changes or additional terms and conditions an offeror seeks to present for consideration by the STATE. Offerors are instructed to not include cost information in the Technology Contract.

Proposed Additional Terms If the proposal includes any proposed additional terms and conditions, such as software licensing agreement, maintenance agreement, or third-party agreement, these agreements must be included in the proposal.

Section 4 – Open Records and Confidentiality The state of North Dakota has broad open records laws. Proposals received are exempt from open record requirements until an award is made, in accordance with N.D.C.C. § 54-44.4-10(2). After award, proposals are subject to the North Dakota open records laws. Proposals or portions of proposals may be confidential only if specifically stated in law.

Offerors are instructed not to mark their entire proposal as “confidential.”

Offeror must provide one of the following in their proposal:

· Provide a statement indicating that their proposal does not contain any confidential information; or

· Make a written request to hold confidential any trade secrets and other proprietary data contained in its proposal. Offeror must clearly identify the material considered confidential and explain why the material is confidential. See the North Dakota Office of the Attorney General website for additional information. https://www.legis.nd.gov/cencode/t44c04.pdf and https://attorneygeneral.nd.gov/open-records-meetings If the STATE receives a request for public information, the Procurement Officer, in consultation with the Office of the Attorney General, shall determine whether the information is an exception to the North Dakota open records laws, and the information shall be processed accordingly.

ATTACHMENT 1 – SCOPE OF WORK

Complete Attachment 1 tabs that are labeled ‘2.1 Info Tech Solution’, and ‘2.2 CS, Experience and Qual’. Provide a response for each question. Submit this Attachment in MS Excel, not in the PDF document.

ATTACHMENT 1 – LocationS of Work & Cost Tab Cost proposals must provide a total proposed cost for completing the requirements of this RFP. Include a detailed itemization of the cost proposal (e.g. breakdown of the project costs, direct and indirect expenses, total number of hours at various hourly rates, overhead, travel, etc.).

All costs must be stated in U.S. currency. Any commodities being imported must be identified, and the price must include any applicable customs, brokerage agency fees, and duties.

Offeror should describe any discount terms for prompt payment. Discounts for prompt payment will not be considered in evaluating costs.

Provide costs associated with any Value-Added Features included in your proposal response. Provide details related to initial costs, reoccurring costs, and options.

Offeror must complete the Attachment 1 – Scope of Work: ‘Locations of Work-Cost’ tab.

SECTION FOUR – PROPOSAL EVALUATION

Award The STATE intends to award a contract to the responsible offeror whose proposal is determined to be responsive to the requirements of the solicitation and is determined to be most advantageous in consideration the RFP evaluation criteria.

Responsiveness All proposals will be evaluated to determine if they are responsive to the requirements of the solicitation. The STATE reserves the right to waive minor informalities in accordance with N.D.A.C. chapter 4-12-10. Minor informalities are insignificant omissions or nonjudgmental mistakes that are matters of form rather than substance, evident from RFP document, with a negligible effect on price, quantity, quality, delivery, or contractual conditions that can be waived or corrected without prejudice to other offerors.

Responsive proposals will be evaluated by the Procurement Officer or evaluation committee using the evaluation criteria stated in the RFP.

Responsibility The STATE may, at any time, may make a supplementary investigation as to the responsibility of any offeror in accordance with N.D.A.C. § 4-12-11-04. This investigation may include, but is not limited to, financial responsibility, performance record, or other matters related to the offeror’s probable ability to deliver if a contract is awarded to the offeror. The STATE reserves the right to contact references, other customers, including state and local government agencies, regarding past experience with the offeror. If it is determined that an offeror appears not to be sufficiently responsible, the proposal will be rejected.

Evaluation Criteria Proposals will be evaluated using a 100 point scale. The evaluation committee will award points based on the questions in the Attachment 1 - Scope of Work: ‘Proposal Evaluation Worksheet’. The technical proposals evaluation score and cost proposal evaluation score will be added to determine the total evaluation score. After the initial evaluation, the evaluation committee may determine which proposals are reasonably susceptible for award and short-list the evaluation process to only those offerors. The final evaluation score will consider information received by the STATE, including but not limited to, discussions with offerors, demonstrations, presentations, site visits, reference checks, and best and final offers.

The evaluation criteria and relative weight is as follows:

Technical Proposal Evaluation: 50 Points A. Information Technology Solution – 40 Points B. Customer Service, Experience and Qualifications – 10 Points Minimum Technical Score: Technical proposals must receive at least 33 of the total points available for the Technical Score to be considered responsive to the RFP requirements. The bottom of the “Good” Point Value range in the Proposal Evaluation Worksheet Rating Scale is generally equivalent to 65%.

Cost Proposal Evaluation: 50 Points Preference Laws: Any applicable preference laws will be applied. For more information, refer to the Guidelines to Preference Laws.

Cost Proposal evaluations The STATE will calculate evaluation points awarded to cost proposals. Any prompt payment discount terms proposed by the offeror will not be considered in evaluating cost.

The reciprocal preference law, N.D.C.C. § 44-08-01, was repealed effective August 1, 2023.

The cost amount used for evaluation may also be affected by the application of other costs required to implement the proposed solution to determine the total cost of the solution (i.e. cost for ITD to host a State hosted solution).

If the offeror is proposing a solution for which STATE has an enterprise license agreement, STATE reserves the right to utilize the enterprise license agreement pricing in the cost point evaluation. If the offeror is awarded, STATE, at its sole discretion, may:

· give offeror the opportunity to match the pricing and licensing terms of STATE’s existing enterprise license agreement, or

· purchase licensing using its existing enterprise license agreement and deduct the actual cost of licensing from offeror’s total cost in the resulting contract.

The cost proposal with the lowest cost will receive the maximum number of points. Points awarded to other cost proposals will be calculated as follows:

Price of Proposal Being Rated

Clarifications of proposals – Discussions In order to determine if a proposal is reasonably susceptible for award, communications by the Procurement Officer or evaluation committee are permitted with an offeror to clarify uncertainties or eliminate confusion concerning the contents of a proposal and determine responsiveness to the RFP requirements. Discussions will be limited to the specific section of the RFP or proposal indicated by the STATE.

In conducting discussions, there may be no disclosure of any information derived from proposals submitted by competing offerors. Clarifications may not result in a material or substantive change to the proposal.

Discussions are generally conducted by telephone or internet-based conference.

Right of Rejection The STATE reserves the right to reject any proposals, in whole or in part. Proposals received from suspended or debarred bidders will be rejected. Proposals determined to be nonresponsive to the requirements of the RFP will be rejected. The STATE reserves the right to reject the proposal of an offeror determined to be not responsible. The STATE reserves the right to refrain from making an award if determined to be in its best interest.

Presentations, Demonstrations or On-site Visits After the initial evaluation, the STATE shall determine which proposals are reasonably susceptible for award. The evaluation process may be short listed to top scoring offerors who will be required to provide a presentation for the evaluation committee.

Best and Final Offers The STATE is not obligated to request best and final offers; therefore, offerors should submit their best terms (technical and cost) in response to this RFP.

If the STATE determines there is a need for any additional information, substantial clarification or changes to the RFP or proposals, the STATE may request for best and final offers from offerors that have submitted proposals determined to be reasonably susceptible for award. The best and final offer request will describe the additional information, clarification, or change being requested.

A date and time will be established for receipt of revised proposals. If an offeror does not submit a best and final offer, the STATE shall consider its original proposal as its best and final offer.

Best and final offers will be evaluated using the evaluation criteria stated in the RFP. The STATE may request more than one Best and Final Offer.

Tie Proposals In the event, N.D.C.C. § 54-44.4-05.1 requires in the event that two or more proposals contain identical pricing or receive identical evaluation scores, preference must be given to a resident North Dakota bidder, seller, vendor, offeror, or contractor as defined in N.D.C.C. § 44-08-02. In the event the tie is not resolved by application of this law, N.D.A.C. § 4-12-11-05 will be applied.

Negotiations Contract negotiations will be conducted in accordance with N.D.A.C. § 4-12-12. The STATE may enter into negotiations with one or more offeror whose proposals received the highest scores and are reasonably susceptible for award. During negotiations, the STATE and offeror may agree to alter or otherwise change the terms and conditions of the proposed contract. Negotiation, if held, will be within the scope of the RFP.

Each offeror will be responsible for all costs it incurs as a result of negotiations, including any travel and per diem expenses.

Contract negotiations will be conducted primarily by email, conference calls, or internet-based conference.

The STATE may terminate negotiations, reject a proposal as nonresponsive, or continue or commence negotiations with other offerors reasonably susceptible for award, if the offeror:

· fails to provide necessary information for negotiation in a timely manner,

· fails to negotiate in good faith,

· is unable to successfully negotiate contract terms that are acceptable to the STATE, or

· indicates that it cannot perform the contract within the budgeted funds.

Notice of Intent to Award After proposals have been evaluated and the successful offeror selected, notice of intent to award will be promptly issued to all offerors that submitted proposals. Upon issuance of this notice, the procurement file becomes an open record.

The successful offeror named in the Notice of Intent to Award is advised not to begin work, purchase materials, or enter into subcontracts until the successful offeror and the STATE sign the contract.

Contract Approval This RFP does not, by itself, obligate the STATE. The STATE's obligation shall commence when the STATE signs the contract. Upon written notice to the contractor, the STATE may set a different starting date for the contract. The STATE shall not be responsible for any work done by the contractor, even work done in good faith, if it occurs prior to the contract start date set by the STATE.

Evaluation Debrief After the notice of intent to award is issued, offerors may contact the Procurement Officer to schedule an evaluation debrief. The debrief will provide information about the evaluation process and proposal scores.

SECTION FIVE– CONTRACT INFORMATION

North Dakota Contractual Requirements – Background As a public institution and government entity of the state of North Dakota (the STATE), there are certain statutes, rules, and policies (Requirements) that may restrict or prevent the STATE from entering into certain types of contracts or certain contractual terms and conditions, some of these Requirements are non-negotiable.

While these Requirements occasionally make the process of negotiating a contract with the STATE more challenging than negotiating with a private industry business, these are not unique to any one agency of the state of North Dakota. These Requirements apply to all public institutions and government entities of the state of North Dakota. Although some Requirements are unique to North Dakota, the majority are common to public institutions and government entities throughout the United States.

State Contract Terms and Conditions – Offeror’s Proposed Changes The STATE intends to execute a contract substantially similar to the Attachment 2 - Technology Contract. The contractor must comply with the terms and conditions set forth in attached contract. North Dakota procurement statutes, rules, and policies allow some negotiation of the terms and conditions. No changes to the terms and conditions will be permitted without prior written approval from the STATE.

Pursuant to N.D.A.C. § 4-12-11-06, proposals subject to conditions imposed by the offeror may be rejected as nonresponsive, as determined by the STATE.

Proposed terms and conditions that conflict with those contained in the attached contract or that diminish the STATE’s rights under the contract shall be considered null and void. The terms and conditions in the attached contract shall prevail in the event a conflict arises between a term or condition in the proposal and a term or condition in the attached contract.

Part or all of this RFP and offeror’s proposal may be incorporated into the attached contract.

The STATE may deem any failure to object to a contract provision as the offeror’s acceptance of that provision.

Contractual Terms and Conditions – No Material Changes

PREPAYMENT

The STATE may not make prepayment for services or goods under a contract. This means the STATE may not pay for services or goods not received and accepted by the STATE. Unique circumstances may allow for payment “up front” such as subscription services or certain licensing fees so long as the service or licensed product is available and provided at the time of payment and is capable of being used for its intended purpose under the contract. STATE will not pay up front for licensing fees for a product that will include deliverables, acceptance testing, and final acceptable. For the avoidance of doubt, if the licensed product requires customization, the STATE will not pay up front for the license(s).

Indemnification and Insurance N.D.C.C. § 32-12.2-17 requires that the Office of Management and Budget establish guidelines for indemnification and insurance provisions in state contracts. The indemnification and insurance requirements contained in the attached contract are pursuant to those guidelines. The STATE shall not be deemed to have accepted any alteration of these provisions without prior written approval to offeror from the STATE acting in consultation with the North Dakota Risk Management Division.

Indemnification Indemnification is a contractual clause by which one party to a contract asks the other party to defend it against any claims of third parties who might be injured as a result of something that occurs while the parties are performing their duties and obligations under the contract. Without specific authority to do so, the STATE agencies cannot enter into agreements indemnifying contractors, or any other entity, against third party claims.

Any clause that has the intent of seeking indemnification from the STATE, whether or not the clause contains the words “indemnity” or “indemnify,” are not clauses to which the STATE may agree.

The STATE will not agree to clauses to indemnify a contractor “to the extent permitted by law.” This is because the STATE knows that the extent to which the law permits it to indemnify contractors is no extent whatsoever, and as a result would be disingenuous for the STATE to imply in a contract that there might be some set of circumstances under which the STATE would defend the contractor against a third-party claim(s). Simply put, the STATE is not going to agree to something it knows it cannot do. In this circumstance an “extent” clause is merely an invitation to litigate the matter in the event a third-party claim(s) arises, and the STATE does not enter into agreements that invite litigation.

Do not ask the STATE to indemnify you against third party claims because it is a contractual obligation to which the STATE cannot agree.

While the STATE may limit the liability of a contractor in claims between the STATE and the contractor, the STATE does not have authority to limit a contractor’s liability for claims brought by a third party. In the event a contract contains a limitation of liability clause, the contract’s Indemnification clause and obligation of the contractor cannot be subject to that limitation of liability clause. See 6.2(B) for Limitation of Liability.

Insurance Upon receipt of the Notice of Intent to Award, the successful offeror must obtain the required insurance coverage and provide the Procurement Officer with proof of coverage prior to contract approval. The coverage must be satisfactory to the STATE, in consultation with the North Dakota Risk Management Division. The successful offeror’s failure to provide evidence of insurance coverage is a material breach and grounds for withdrawal of the award or termination of the contract.

Limitation of Liability The STATE may negotiate Limitation of Liability pursuant to N.D.C.C. § 32-12.2-15 “Contracts limiting liability to the STATE”.

Notwithstanding any provision in N.D.C.C. ch. 32-12.2 to the contrary, an agency may agree to limit the liability of a contractor to the STATE if:

1. The contract type meets the criteria of N.D.C.C. § 32-12.2-15(1);

2. the agency determines such services or products cannot be effectively obtained without such limitation;

3. the limitation does not pose any significant risk of loss to the STATE; and

4. the limitation is in the best interests of the STATE.

The agency, in consultation with the OMB and the attorney general's office, shall prepare a written documentation before agreeing to any liability limitation.

An agency's authority to agree to a limitation of liability is limited to contracts for the purchase or lease of, or services related to, software, communication, electronic equipment, and economic forecasting.

1. An agency may limit its ability to recover indirect consequential damages.

2. If the extent of potential direct loss is unknown, an agency may agree to limit direct damages to a reasonably estimated amount commensurate with the foreseeable risk of loss to the STATE. The amount must be equal to twice the total value of the contract, unless all parties to the contract agree to an alternative amount. Any agreed upon amount that is less than twice the value of the contract must be approved by the director of the OMB. The liquidated damages and retainage provisions for delay, missed deadlines, and other breaches are not subject to a general limitation on direct or indirect damages authorized under N.D.C.C. § 32-12.2-15.

3. A contract under N.D.C.C. § 32-12.2-15 may not limit any loss to the STATE resulting from fraud or other intentional or willful misconduct, breach of confidentiality obligations, or loss resulting from tangible property damage or personal injury.

Waivers of Jurisdiction and Venue; Alternative Dispute Resolution The North Dakota Attorney General is the STATE’s attorney for all purposes, including management of litigation and claims against the state. The STATE may not usurp the Attorney General’s authority by agreeing in advance to control the way litigation may be managed in the event of a dispute. The STATE cannot, without specific authority, agree to the jurisdiction or the laws of another state or federal courts, nor can it contractually agree to participate in any form of alternative dispute resolution.

Although the STATE cannot contractually agree to such terms, this does not mean that in the event of a dispute, the STATE would not agree to participate in alternative dispute resolution. It simply means that this is a decision that must be made by the Attorney General and is a decision that is made at the time a dispute arises.

Confidentiality All state agencies of North Dakota are subject to North Dakota public records laws. The STATE cannot agree to contractual terms that attempt to prevent it from having to disclose records that are declared public records under applicable statutes. Although some confidentiality and exemptions are allowed under the public records laws, the STATE may not agree to more restrictive obligations concerning its records. Under North Dakota public records laws, contracts are records that are open to the public and may be reviewed at the request of the public.

Unliquidated Expenses (i.e., attorney’s fees, add-ons, cost increases) Because the STATE may only obligate those funds that have been appropriated to it by the Legislative Assembly and may only obligate those funds for the purposes for which the funds were appropriated, the STATE may not agree to clauses which may obligate it to pay for claims that might exceed its current funding appropriation. Certainly, this is one of numerous reasons why the STATE cannot indemnify a contractor against third party claims, but it may also be said for clauses that purport to obligate the STATE to pay a contractor’s attorneys’ fees, unknown cost increases during the life of the contract, add-ons that were not contemplated or priced in the contract.

Scope of Work The Scope of Work agreed upon by the parties will be incorporated into the attached contract.

Contract Term The contract term will be set forth in contract, including any options for extension, renewal, and renegotiation.

Compensation Compensation and payment terms will be set forth in the contract based upon the successful offeror’s proposal.

Liquidated Damages The contract may include a clause setting forth an actual dollar amount designated as liquidated damages in order to make the STATE whole if it suffers damages due to a contractor’s fault. The specific dollar amount for liquidated damages may be part of the negotiation process. The amount will be reasonable and not disproportionate to the damages to the STATE that are anticipated at the point of the contract and will not serve in any way as a penalty.

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