rfqq 24-00024 aircraft services.docx

STATE OF WASHINGTON

DEPARTMENT OF FISH AND WILDLIFE

REQUEST FOR QUALIFICATIONS AND QUOTATIONS 24-00024

PROJECT TITLE: AIRCRAFT CHARTER SERVICES

PROPOSAL DUE DATE: Monday, November 18, 2024 by 4:00 p.m. PST

EXPECTED TIME PERIOD FOR CONTRACT: December 15, 2024 through June 30, 2027

ESTIMATED PROCUREMENT SCHEDULE:

BIDDER ELIGIBILITY: This procurement is open to those bidders who satisfy the minimum qualifications stated herein and are available for work in Washington State. Disadvantaged, Minority and Women Owned Business Enterprises are encouraged to apply.

CONTENTS OF THE REQUEST FOR QUALIFICATIONS AND QUOTATION

WDFW RFQQ #24-00024 Page 1 of 24

8. Exhibits:

If any bidder does not comply with any part of this RFQQ their entire proposal may be rejected as non-responsive.

1. SCOPE OF WORK

1.1 Purpose

The purpose of this Request for Qualifications and Quotations (RFQQ) is to identify contractors to provide suitable fixed wing and rotary wing aircraft, and qualified pilots to WDFW for a variety of services. This is a supplement to Department of Enterprise Services’ statewide contract for air charter services. These services include:

1) Aerial sightability surveys of wildlife such as mountain goats, bighorn sheep, mule deer and elk utilizing helicopters such as Bell model 206 aircraft.

2) Aerial surveys of migratory birds and marine mammals using fixed wing aircraft such as a Cessna 206 aircraft; or utilizing helicopters such as Bell model 206 aircraft.

3) Aerial photographic imaging surveys of migratory birds and marine mammals using fixed wing aircraft such as Partenavia P.68 aircraft.

4) Aerial shellfish surveys using fixed wing aircraft.

5) Aerial darting and capture services for radio collared animals such as wolves, elk, mountain goats and moose using helicopters such as MD Helicopters models 500 or 530, or Bell model 206 aircraft.

6) Aerial net-gunning and capture services for animals such as bighorn sheep, deer and mountain goats using helicopters such as MD Helicopters models 500 or 530, or Bell model 206 aircraft.

7) Aerial telemetry for wildlife species such as deer, elk, wolves, sheep and mountain goats using rotary or fixed-wing aircraft.

For fixed wing aircraft flights may depart from regional airports. For helicopters flights may depart from regional airports; or from remote locations with suitable landing zones that accommodate safe landing, secure aircraft storage, and fuel truck access. At remote locations the Contractor may be required to supply a fuel truck to facilitate remote landing zones. WDFW staff will provide commonly used remote landing zone locations to the Contractor prior to any flights.

WDFW is looking for pilots with extensive experience in conducting these services. Any proposal by the Contractor for changes, replacement, or substitution of either pilots or aircraft during the duration of a contract must be submitted to WDFW. WDFW shall have the sole discretion to accept or reject such changes. In no event shall such changes in pilots and/or aircraft take effect without WDFW’s written consent.

WDFW anticipates awarding contracts to one or more bidders responding to this procurement. WDFW will issue orders under these contracts as necessary. The award of a contract is not a guarantee of work.

2. MANDATORY QUALIFICATIONS

2.1 Required Certifications and Skills

The Contractor will meet the following requirements while providing services under this contract:

a. Pilots – Pilots must meet all requirements under 14 CFR Part 91. A copy of the Pilot’s Operators License will be available upon request of WDFW.

b. Aircraft - All aircraft will be inspected a minimum of every 100 hours of flight and have a current annual inspection by approved Federal Aviation Administration (FAA) certified mechanics. These records should be readily available upon request of WDFW.

c. When applicable, Contractor certifies to submit and receive approval for a Congested Area Plan (CAP) with the FAA.

d. Flying Time - Pilots will have a minimum of 1,000 hours flight time and a minimum of 50 hours flight time on aircraft being used at the time they are flying WDFW Personnel. A copy of the Pilots Log Book will be available upon request of WDFW. WDFW reserves the right to verify “ramp checks” with FAA.

e. Mountains - When flying over the Cascade and Olympic Mountain Ranges in Instrument Flight Rules (“IFR”) conditions, only twin engine aircraft will be used.

f. IFR Flights - Single engine aircraft will not be scheduled for IFR flights. However, they will contain necessary instruments and communication equipment to make a safe approach and landing if weather changes from Visual Flight Rules (“VFR”) to IFR conditions.

g. Flight Plans - Flight plan will be filed with the FAA in accordance with FAR 91-83 on all flights under this contract.

h. The Contractor may only propose pilots and aircraft certified under 14 CFR part 91. The Contractor will maintain any and all other applicable FAA/FAR licenses up to date during the life of the contract for each air charter service provided.

i. Contractor certifies to follow any and all other applicable FAA/FAR regulations during the life of this contract for each air charter service provided.

j. In addition to the insurance requirements contained in Exhibit A, the Contractor will maintain Aircraft Hull Lability Insurance that shall include physical damage, owners, operators, passengers, baggage, and cargo carried on the aircraft of $1,000,000 per occurrence and medical coverage for passengers, pilots, and crew for $1,000,000 per occurrence.

k. The Contractor must comply with WDFW Procedure 2006, WDFW Aircraft Safety Procedures.

2.2 Preferred Certifications and Skills

WDFW gives preference to aircraft operators and aircraft certificated under 14 CFR part 135 for commuter or on-demand operations.

3. RFQQ COORDINATOR

The RFQQ Coordinator is the sole point of contact in the WDFW for this procurement. All communication between bidders and WDFW upon receipt of this RFQQ shall be with the RFQQ Coordinator, as follows:

Contracts and Purchasing

4. INSTRUCTIONS TO BIDDERS

All required documents must be submitted to the RFQQ Coordinator by e-mail by the times and dates in this RFQQ. Bidders are responsible for the means of delivery of all documents to ensure receipt by the RFQQ Coordinator by the required dates and times.

4.1 Proposal Contents

All bids submitted in response to this RFQQ shall consist of the following documents:

· Exhibit A, Certification and Assurances, signed by applicant or a person authorized to bind you or your organization to a contract.

· Exhibit B, Bidder Questionnaire, completed by your organization and including a resume’ for any proposed Vendor staff and a current copy of licenses and certifications as described in 2.1 and 2.2; and

· Exhibit C, Bidder Profile, completed by your organization.

4.2 Proposal Format

One copy of the complete proposal must be submitted by the Vendor to the RFQQ Coordinator electronically using Microsoft Word, Excel, or portable document format (pdf). Any documents which require an official signature should be submitted in pdf.

4.3 Proprietary Information

Clearly mark any portion(s) of your proposal which contains proprietary information. You may not mark the entire proposal as proprietary. If your proposal is successful, and WDFW receives a public disclosure request to view or copy your proposal, WDFW shall respond according to public disclosure procedures described in this RFQQ. However, if any information in your proposal is marked as proprietary, WDFW shall not make that portion available without giving you an opportunity to seek a court order preventing disclosure.

4.4 Pre-bid Conference and Bidder Questions

Bidders wishing to submit a proposal for this procurement may attend an optional Pre-Bid Conference on Wednesday, October 23, 2024 from 2:00 pm to 3:00 pm, local Olympia WA time. This conference will be held virtually via a Microsoft Teams meeting; the link to this meeting is below:

Join the meeting now Meeting ID: 231 611 293 193 Passcode: bDyFUz

Dial in by phone +1 564-999-2000,,42930673# United States, Olympia Find a local number Phone conference ID: 429 306 73# For organizers: Meeting options | Reset dial-in PIN

Specific questions concerning the procurement should be submitted in writing to the Procurement Coordinator not later than Friday, October 25, 2024 by 4:00 pm local Olympia WA time, so that representatives of WDFW may prepare preliminary answers in advance of the conference. Additional questions will be entertained at the conference; however, responses may be deferred and provided later. Any oral answer given at the conference is to be considered as tentative. All questions submitted prior to or discussed during the conference will be researched and the official answers published to the WEBS as an amendment to this procurement by noon on August 13, 2024. This will assure accurate and consistent responses to all Bidders. Only the written answers will be considered official.

4.5 Delivery of Proposals

Send complete proposal to the RFQQ Coordinator at the email address specified in Section 3 of this RFQQ. Email transmission is required. Proposals must be received by the RFQQ Coordinator no later than 4:00 p.m. PST on Monday, November 18, 2024. Late proposals will not be accepted and shall automatically be disqualified from further consideration. A confirmation of receipt will be sent to, or provided to, each bidder as their proposal is received.

WDFW assumes no responsibility for delay in transmission of proposals. WDFW will use the “time stamp” on the email as the official time of receipt. Time extensions will not be granted.

4.6 Procurement Complaint Process

Vendors considering submitting a bid or proposal in response to any request for bids, request for qualifications, request for proposals or any solicitation for goods and services under RCW 39.26 may submit complaints regarding a particular solicitation to the WDFW solicitation point of contact. Vendors may submit a complaint on the following for any solicitation:

· The solicitation unnecessarily restricts competition;

· The solicitation evaluation or scoring process is unfair or flawed; or

· The solicitation requirements are inadequate or insufficient to prepare a response.

All complaints submitted under this process must:

· Be in writing;

· Be received by the WDFW solicitation point of contact by e-mail not later than five business days before the vendor’s response to a solicitation is required to be submitted to WDFW.

· Clearly articulate the basis for the complaint; and

· Include a proposed remedy.

WDFW will respond to complaints in writing and post the response (and any changes to the solicitation required by the response) on WEBS. Vendors may not appeal the response or raise the same complaint during any protest period.

4.7 Washington’s Electronic Business Solution (WEBS)

Bidders are solely responsible for:

· Properly registering with Washington’s Electronic Business Solution (WEBS) at www.des.wa.gov and maintaining an accurate Vendor profile in WEBS.

· Downloading the RFQQ packet consisting of the RFQQ, all Appendices, and incorporated documents related to the RFQQ for which you are interested in Bidding.

· Downloading all current and subsequent Amendments to the RFQQ to ensure receipt of all RFQQ documents.

Notification of Amendments to the RFQQ will only be provided to those vendors who have registered with WEBS and have downloaded the RFQQ from WEBS. Failure to do so may result in a Bidder having incomplete, inaccurate, or otherwise inadequate information and Bid.

5. EVALUATION AND AWARD PROCEDURES

5.1 Evaluation Team

A team will be formed to evaluate proposals. The team will be composed of individuals with technical and/or financial backgrounds. WDFW will evaluate the proposals for compliance with procedural requirements.

5.2 Information Used For Evaluation

The evaluation team will use the information in the Bidder Questionnaire, sample work product, information gathered from Bidder’s references and cost proposal. No other information will be supplied to or used by the evaluation team. The following weighting and points will be assigned to the bid for evaluation purposes:

5.3 Evaluation Steps

1. Preliminary Screening. WDFW staff shall review Bidders’ Questionnaires and Quotations for compliance with RFQQ procedural instructions. Non-responsive Questionnaires and Quotations will be eliminated from further evaluation.

2. Review of Mandatory Requirements/Qualification Points. The evaluation team will determine whether Bidders’ responses to the mandatory requirements are adequate. A response to all questions in the Bidder Questionnaire/ References, Exhibit B, is required. Non-responsive Questionnaires and Quotations will be eliminated from further evaluation. The raw score for the Qualifications is based on a point system that will be scored by the evaluation team.

3. Cost Proposal Points. The raw score for the Cost Proposal is computed by dividing the amount of the lowest quote by the bidder’s Cost Proposal and multiplying by 5.

4. Reference Checks. References will be checked for bidders by contacting each of the required reference provided by the bidder, by telephone. If references cannot be verified, bidder will receive zero (0) points for those references. Bidders whose references cannot be verified will be contacted and allowed one (1) day to arrange for reference verification. Points will be added to the total points awarded to the bidder for their proposal. WDFW reserves the right to utilize other references and contact other parties to obtain references on your firm.

5. Optional Interview. Reviewers will use scores from the written proposals to develop a priority ranking of proposals and make a determination if interviews will be necessary. The Interview, if necessary, will make the final decision for award of contract.

5.4 Notice of Award and Contract Signature

WDFW will notify all bidders in writing of the selection of Apparently Successful Bidder(s).

6. GENERAL PROVISIONS

6.1 Public Disclosure

Proposals shall become the property of WDFW. All public records of the WDFW are available for disclosure except: “Competitive procurement instruments, such as a request for proposals or an invitation for bids, prior to the release to potential respondents/bidders; proposals and bids received in response to competitive contract procurement instruments until either the public response to the competitive contract procurement instruments until either the opening of bids or, for proposals, the contractor and the department have signed the contract.”

WDFW will not disclose RFQQ records until execution of the contract(s). At that time, all information about the competitive procurement is disclosable with the exception of the portion(s) of the any proposal designated proprietary until the respondent/bidder has an adequate opportunity to seek a court order preventing disclosure.

WDFW may charge for copying and shipping any copies of material requested – contact WDFW for estimate of cost. WDFW will not charge a fee for inspection of RFQQ or contract files. Address requests for copying or inspecting materials to the RFQQ Coordinator.

6.2 Costs for Proposal Preparation

WDFW will not be liable for any costs or liabilities incurred by the Bidder associated with the preparation of the proposal in response to this RFQQ.

6.3 Waiver of Minor Irregularities

WDFW reserves the right to waive minor irregularities contained in any proposals submitted in response to this RFQQ.

6.4 Right to Reject All Proposals

WDFW may, at any time at its sole discretion and without penalty, reject any and all proposals and issue no contract as a result of this RFQQ.

6.5 Authority to Bind WDFW

Only the Director of WDFW and his/her designated representatives may legally commit WDFW to contracts. The Bidder shall not incur, and WDFW shall not pay, any costs incurred before a contract is fully executed.

6.6 Contract Terms

The Apparently Successful Bidder will be required to sign a contract which contains general terms and conditions substantially the same as those included with this RFQQ as Exhibit D. The contract will also incorporate this RFQQ and the successful proposal.

WDFW RFQQ #24-00024 Page 24 of 24

7. DEBRIEFING AND PROTEST PROCEDURES

Discussion will be limited to a critique of the requesting Consultant’s proposal. Comparisons between proposals or evaluations of the other proposals will not be allowed. Debriefing conferences may be conducted in person or on the telephone and will be scheduled for a maximum of one hour.

7.2 Protest Procedures

RCW 39.26.170 requires WDFW to have a clear and transparent complaint process that allows bidders to submit protests after the announcement of the apparent successful bidder (ASB). The purpose of this process is to allow WDFW to correct evaluation process errors and problems before a contract is executed. After the announcement of the ASB, the WDFW solicitation point of contact must offer a debriefing conference to any bidder upon request. Bidders must request a debriefing conference within three (3) business days after the ASB is announced. In order to submit a protest for a solicitation:

· The bidder must have submitted a response for that solicitation;

· The bidder must have participated in a debriefing conference for that solicitation;

· The protest must be received by the WDFW solicitation point of contact by e-mail or letter within (5) business days after the bidder’s debriefing conference; and

· The protest must be in writing and clearly articulate the basis for the protest.

Bidders may submit a protest on the following issues for a solicitation:

· A matter of bias, discrimination, or conflict of interest on the part of an evaluator;

· Errors in computing the scores; or

· Non-compliance with procedures described in the procurement document or agency protest process.

The WDFW Chief Financial Officer will act as the Protest Officer for as long as he/she has no involvement in the evaluation and award process; if he/she has such involvement the WDFW Deputy Director will select another neutral party to act as Protest Officer The Protest Officer is responsible for investigating and responding to the protest in writing within 10 business days from receipt of the protest, unless additional time is needed. If additional time is needed the Protest Officer will notify the protesting bidder within 10 business days from receipt of the protest. The Protest Officer’s decision regarding a protest is final. At the time that the protest response is issued, the WDFW Director and Department of Enterprise Service Director will be provided a copy of the original protest and the agency’s protest response.

Exhibit A

CERTIFICATIONS & ASSURANCES

We make the following certifications and assurances as a required element of submitting this Proposal, affirming the truthfulness of the facts declared here and acknowledging that the continuing compliance with these statements and all requirements of the solicitation are conditions precedent to the award or continuation of the resulting contract.

1. We have read, understand, and agree to abide by all information contained in the solicitation, all Exhibits, and incorporated documents.

2. The attached Proposal is a firm offer for a period of 180 days following the Proposal Due Date specified in the solicitation, and it may be accepted by WDFW without further negotiation (except where obviously required by lack of certainty in key terms) at any time within this period. In the case of a protest, our Proposal will remain valid for 180 days or until the protest and any related court action is resolved, whichever is later.

3. In preparing this Proposal, we have not been assisted by any current or former employee of the state of Washington whose duties relate (or did relate) to the state's solicitation, or prospective Contract, and who was assisting in other than his or her official, public capacity. Neither does such a person nor any member of his or her immediate family have any financial interest in the outcome of this Proposal. (Any exceptions to these assurances are described in full detail on a separate page and attached to this document.)

4. We understand that the state of Washington will not reimburse us for any costs incurred in the preparation of this Proposal. All Proposals become the property of the state, and we claim no proprietary right to the ideas, writings, items or samples unless so stated in the Proposal. Submittal of the attached Proposal constitutes an acceptance of the evaluation criteria and an agreement to abide by the procedures and all other administrative requirements described in the solicitation.

5. We understand that any Contract awarded as a result of this Proposal will incorporate all solicitation requirements. Submittal of a Proposal and execution of this Certifications and Assurances document certify our willingness to comply with the Contract terms and conditions appearing in the solicitation, all Exhibits, and incorporated documents if selected as a Contractor. It is further understood that our standard Contract will not be allowed as a replacement for the terms and conditions appearing in the solicitation, all Appendices, and incorporated documents of this solicitation.

6. By submitting this Proposal, we hereby offer to furnish materials, supplies, services and/or equipment in compliance with all terms, conditions, and specifications contained in this solicitation.

7. We are not submitting any exceptions.

8. That neither we nor our “principals” (as defined in 49 CFR 29.105) are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency, or the state of Washington.

9. That we have NOT been determined by a final and binding citation and notice of assessment issued by the Washington Department of Labor and Industries or through a civil judgment entered by a court of limited or general jurisdiction to have willfully violated, as defined in RCW 49.48.082, any provision of RCW chapters 49.46, 49.48, or 49.52 within three (3) years prior to the date of the solicitation date.

I certify (or declare) under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

TITLE DATE

VENDOR CERTIFICATION EXECUTIVE ORDER 18-03 – WORKERS’ RIGHTS WASHINGTON STATE GOODS & SERVICES CONTRACTS Pursuant to RCW 39.26.160(3) (best value criteria) and consistent with Executive Order 1803 – Supporting Workers’ Rights to Effectively Address Workplace Violations (dated June 12, 2018), the Washington Department of Fish and Wildlife will evaluate bids for best value and provide a bid preference in the amount of 3% to any bidder who certifies, pursuant to the certification below that its firm does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waiver.

I hereby certify, on behalf of the firm identified below, as follows (check one):

NO MANDATORY INDIVIDUAL ARBITRATION CLAUSES AND CLASS OR COLLECTIVE ACTION WAIVERS FOR EMPLOYEES. This firm does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

OR

MANDATORY INDIVIDUAL ARBITRATION CLAUSES AND CLASS OR COLLECTIVE ACTION WAIVERS FOR EMPLOYEES. This firm requires its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

I HEREBY CERTIFY, UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF WASHINGTON, THAT THE CERTIFICATIONS HEREIN ARE TRUE AND CORRECT AND THAT I AM AUTHORIZED TO MAKE THESE CERTIFICATIONS ON BEHALF OF THE FIRM LISTED HEREIN.

FIRM NAME: _____________________________________________________

NAME OF VENDOR – PRINT FULL LEGAL ENTITY NAME OF FIRM

dba, if applicable ____________________________________________________ By: __________________________________

SIGNATURE OF AUTHORIZED PERSON

Title: ________________________________

TITLE OF PERSON SIGNING CERTIFICATE

Date: ________________________________ Place: ________________________________

PRINT CITY AND STATE

Exhibit B

BIDDER QUESTIONNAIRE

1. Pilot Qualifications

a. Identify the pilot(s) that will be providing services under the proposed contract. Provide a copy of the proposed pilot’s Commercial Operators License. Identify the service(s) that will be performed for each pilot proposed; these services are:

1) Aerial sightability surveys of wildlife such as mountain goats, bighorn sheep, mule deer and elk utilizing helicopters such as Bell model 206 aircraft.

2) Aerial surveys of migratory birds and marine mammals using fixed wing aircraft such as a Cessna 206 aircraft; or utilizing helicopters such as Bell model 206 aircraft.

3) Aerial photographic imaging surveys of migratory birds and marine mammals using fixed wing aircraft such as Partenavia P.68 aircraft.

4) Aerial shellfish surveys using fixed wing aircraft.

5) Aerial darting and capture services for radio collared animals such as wolves, elk, mountain goats and moose using helicopters such as MD Helicopters models 500 or 530, or Bell model 206 aircraft.

6) Aerial net-gunning and capture services for animals such as bighorn sheep, deer and mountain goats using helicopters such as MD Helicopters models 500 or 530, or Bell model 206 aircraft.

7) Aerial telemetry for wildlife species such as deer, elk, wolves, sheep and mountain goats using rotary or fixed-wing aircraft.

b. Does the proposed pilot(s) have a minimum of 1,000 hours flight time and no less than 50 hours on twin engine aircraft plus a minimum of 50 hours flight time on aircraft being used at the time they are flying WDFW Personnel?

c. Describe the proposed pilot’s experience in providing these services. Provide a list of at least five references for which the proposed pilot has provided similar services over the last five years; provide the reference’s name, organization, telephone number and e-mail address.

2. Aircraft

a. Identify the helicopter(s) that will be providing services under the proposed contract. You must identify each aircraft by Part 91 and/or 135 certificate holder name, certificate designator, registration number, serial number, and aircraft make/model.

b. Has the proposed helicopter(s) been inspected a minimum of every 100 hours of flight and have a current annual inspection by approved Federal Aviation Administration (FAA) certified mechanics?

3. Other Information.

a. Support Vehicles. Identify associated support vehicles that will be provided by the Bidder in order to provide services as proposed in this document. Identify associated support vehicles by role, make/model and fueling hauling capacity.

b. Summary of Accidents. Provide the following accident information for your company over the last 36 months:

1) Total Hour of Flight Time

2) Total Number of Accidents

3) Accident Date

4) Accident Time

5) Accident Location

6) Aircraft Type/No.

7) Injury, Death or Damage?

8) Reported to FAA?

9) Description of accident (including mission, cause and extent of damage)

10) Describe efforts taken to eliminate the same kind of accident

4. Pricing

a. Aircraft Rates. Provide the helicopter make/model, wet hourly rate, overnight flight fee and standby hourly rate for each aircraft proposed for service. The points for each of the helicopters bid on will be determined by the wet hourly rate bidders enter. Multiple helicopters of the same make/model can be entered to show the number of available helicopters for use. If multiple helicopters of the same make/model are entered, they all must have the same hourly rates. If different rates are entered, the most expensive hourly rate for that helicopter make/model will be used for the evaluation. Repeat rows as necessary.

b. Support Vehicle Rates. Provide the vehicle make/model, fuel hauling capacity, rate per mile and daily or hourly rate.

· If fuel tanker

Exhibit C

BIDDER PROFILE

COMPANY INFORMATION (for Contract administration purposes) Company Name & Address:

Authorized Representative:

Phone:

Email:

Ordering Address:

Payment Address:

WA Statewide Vendor Payment Number

REFERENCES

Provide a minimum of five (5) professional and personal references for which Bidder has delivered goods and/or services similar in scope as described in the RFQQ.

1. Contact:

Phone:

Email:

2. Contact:

3. Contact:

4. Contact:

5. Contact:

Exhibit D

GENERAL TERMS AND CONDITIONS

Services Contract

DEFINITIONS

As used throughout this contract, the following terms shall have the meaning set forth below:

A. "AGENCY" or “WDFW” shall mean the Department of Fish and Wildlife of the State of Washington, any division, section, office, unit or other entity of the AGENCY, or any of the officers or other officials lawfully representing that AGENCY.

B. "AGENT" shall mean the Director, and/or the delegate authorized in writing to act on the Director's behalf.

C. "CONTRACTOR" shall mean that firm, provider, organization, individual or other entity performing service(s) under this contract, and shall include all employees of the CONTRACTOR.

D. “RCW” shall mean the Revised Code of Washington. All references in the contract to RCW chapters or sections shall include any successor, amended or replacement statutes.

E. "SUBCONTRACTOR" shall mean one not in the employment of the CONTRACTOR, who is performing all or part of those services under this contract under a separate contract with the CONTRACTOR. The terms "SUBCONTRACTOR" and "SUBCONTRACTORS" means SUBCONTRACTOR(s) in any tier.

ACCESS TO DATA

In compliance with RCW 39.26.180, the CONTRACTOR shall provide access to data generated under this contract to AGENCY, the Joint Legislative Audit and Review Committee, and the State Auditor at no additional cost. This includes access to all information that supports the findings, conclusions, and recommendations of the CONTRACTOR’S reports, including computer models and methodology for those models.

ADVANCE PAYMENTS PROHIBITED

No payments in advance of or in anticipation of goods or services to be provided under this contract shall be made by the AGENCY.

AMENDMENTS

This contract may be amended by mutual agreement of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties.

AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, also referred to as the "ADA" 28 CFR Part 35 The CONTRACTOR must comply with the ADA, which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications.

ASSIGNMENT

Neither this contract, nor any claim arising under this contract, shall be transferred or assigned by the CONTRACTOR without prior written consent of the AGENCY.

ATTORNEYS’ FEES

In the event of litigation or other action brought to enforce contract terms, each party agrees to bear its own attorney fees and costs.

CONFIDENTIALITY/SAFEGUARDING OF INFORMATION

The CONTRACTOR shall not use or disclose any information concerning the AGENCY, or information that may be classified as confidential, for any purpose not directly connected with the administration of this contract, except with prior written consent of the AGENCY, or as may be required by law.

CONFLICT OF INTEREST

Notwithstanding any determination by the Executive Ethics Board or other tribunal, the AGENCY may, in its sole discretion, by written notice to the CONTRACTOR terminate this contract if it is found after due notice and examination by the AGENT that there is a violation of the Ethics in Public Service Act, Chapter 42.52 RCW; or any similar statute involving the CONTRACTOR in the procurement of, or performance under this contract. In the event this contract is terminated as provided above, the AGENCY shall be entitled to pursue the same remedies against the CONTRACTOR as it could pursue in the event of a breach of the contract by the CONTRACTOR. The rights and remedies of the AGENCY provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law. The existence of facts upon which the AGENT makes any determination under this clause shall be an issue and may be reviewed as provided in the “Disputes” clause of this contract.

· COPYRIGHT PROVISIONS

Unless otherwise provided, all materials produced under this contract shall be considered "works for hire" as defined by the U.S. Copyright Act and shall be owned by the AGENCY. The AGENCY shall be considered the author of such materials. In the event the materials are not considered “works for hire” under the U.S. Copyright laws, CONTRACTOR hereby irrevocably assigns all right, title, and interest in materials, including all intellectual property rights, to the AGENCY effective from the moment of creation of such materials. Materials means all items in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. Ownership includes the right to copyright, patent, register and the ability to transfer these rights.

For materials that are delivered under the contract, but that incorporate pre-existing materials not produced under the contract, CONTRACTOR hereby grants to the AGENCY a nonexclusive, royalty-free, irrevocable license (with rights to sublicense others) in such materials to translate, reproduce, distribute, prepare derivative works, publicly perform, and publicly display. The CONTRACTOR warrants and represents that CONTRACTOR has all rights and permissions, including intellectual property rights, moral rights and rights of publicity, necessary to grant such a license to the AGENCY.

The CONTRACTOR shall exert all reasonable effort to advise the AGENCY, at the time of delivery of materials furnished under this contract, of all known or potential invasions of privacy contained therein and of any portion of such document that was not produced in the performance of this contract.

The AGENCY shall receive prompt written notice of each notice or claim of infringement received by the CONTRACTOR with respect to any data delivered under this contract. The AGENCY shall have the right to modify or remove any restrictive markings placed upon the data by the CONTRACTOR.

COVENANT AGAINST CONTINGENT FEES

The CONTRACTOR warrants that no person or selling agent has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, excepting bona fide employees or bona fide established agents maintained by the CONTRACTOR for securing business. The AGENCY shall have the right, in the event of breach of this clause by the CONTRACTOR, to annul this contract without liability or, in its discretion, to deduct from the contract price or consideration or recover by other means the full amount of such commission, percentage, brokerage or contingent fee.

DISALLOWED COSTS

The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its Subcontractors.

DISPUTES

Except as otherwise provided in this contract, when a dispute arises between the parties and it cannot be resolved by direct negotiation, either party may request a dispute hearing with AGENT.

1. The request for a dispute hearing must:

· Be in writing;

· State the disputed issue(s);

· State the relative positions of the parties;

· State the CONTRACTOR’S name, address, and contract number; and

· Be mailed to the AGENT and the other party’s (respondent’s) contract manager within 3 working calendar days after the parties agree that they cannot resolve the dispute.

2. The respondent shall send a written answer to the requester’s statement to both the agent and the requester within 5 working calendar days.

3. The AGENT shall review the written statements and reply in writing to both parties within 10 working days. The AGENT may extend this period if necessary by notifying the parties.

4. The parties agree that this dispute process shall precede any action in a judicial or quasi-judicial tribunal.

Nothing in this contract shall be construed to limit the parties’ choice of a mutually acceptable alternate dispute resolution method in addition to the dispute resolution procedure outlined above.

· DRUG-FREE WORKPLACE

The CONTRACTOR shall comply with the Drug-Free Workplace Act of 1988, 41 USC 701-707, as amended. Compliance with the Drug-Free Workplace Act includes publishing a drug-free workplace statement and establishing a drug-free awareness program for CONTRACTOR employees; and taking actions concerning CONTRACTOR employees who are convicted of violating drug statutes in the workplace. The CONTRACTOR shall provide written notice of a conviction of a Contractor employee of a drug violation in the workplace to WDFW within seven (7) calendar days after the Contractor learns of the conviction.

DUPLICATE PAYMENT

The AGENCY shall not pay the CONTRACTOR, if the CONTRACTOR has charged or will charge the State of Washington or any other party under any other contract or agreement, for the same services or expenses.

FILING REQUIREMENT

The provisions of Chapter 39.26 RCW may require the AGENCY to file this contract as a sole source contract with the Department of Enterprise Services (DES) for approval. If so filed the effective date of this contract is upon DES approval of the contract, the tenth (10th) working day after it is filed with DES, or as agreed between the parties, whichever is later.

FINAL INVOICE

The CONTRACTOR shall submit the final invoice not later than 60 calendar days from the end of the contract period.

GOVERNING LAW

This contract shall be construed and interpreted in accordance with the laws of the State of Washington, and the venue of any action brought hereunder shall be in the Superior Court for Thurston County.

INDEMNIFICATION

To the fullest extent permitted by law, the CONTRACTOR shall indemnify, defend, and hold harmless State, agencies of State and all officials, agents and employees of State, from and against all claims for injuries or death arising out of or resulting from the performance of the contract. “Claim,” as used in this contract, means any financial loss, claim, suit, action, damage, or expense, including but not limited to attorney’s fees, attributable for bodily injury, sickness, disease, or death, or injury to or destruction of tangible property including loss of use resulting therefrom. The CONTRACTOR’S obligations to indemnify, defend, and hold harmless includes any claim by the CONTRACTORS’ agents, employees, representatives, or any subcontractor or its employees. The CONTRACTOR expressly agrees to indemnify, defend, and hold harmless the State for any claim arising out of or incident to the CONTRACTOR’S or any subcontractor’s performance or failure to perform the contract. The CONTRACTOR’S obligation to indemnify, defend, and hold harmless the State shall not be eliminated or reduced by any actual or alleged concurrent negligence of State or its agents, agencies, employees and officials. The CONTRACTOR waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and hold harmless State and its agencies, officials, agents or employees.

INDEPENDENT CAPACITY OF THE CONTRACTOR

The parties intend that an independent contractor relationship will be created by this contract. The CONTRACTOR and his or her employees or agents performing under this contract are not employees or agents of the AGENCY. The CONTRACTOR will not hold himself/herself out as or claim to be an officer or employee of the AGENCY or of the State of Washington by reason hereof, nor will the CONTRACTOR make any claim of right, privilege or benefit that would accrue to such employee under law. Conduct and control of the work will be solely with the CONTRACTOR.

INDUSTRIAL INSURANCE COVERAGE

The CONTRACTOR shall comply with the provisions of Title 51 RCW, Industrial Insurance. If the CONTRACTOR fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees, as may be required by law, AGENCY may collect from the CONTRACTOR the full amount payable to the Industrial Insurance accident fund. The AGENCY may deduct the amount owed by the CONTRACTOR to the accident fund from the amount payable to the CONTRACTOR by the AGENCY under this contract, and transmit the deducted amount to the Department of Labor and Industries, (L&I) Division of Insurance Services. This provision does not waive any of L&I’s rights to collect from the CONTRACTOR.

INSURANCE

The CONTRACTOR shall provide insurance coverage as set out in this section. The intent of the required insurance is to protect the state should there be any claims, suits, actions, costs, damages or expenses arising from any negligent or intentional act or omission of the CONTRACTOR or subcontractor, or agents of either, while performing under the terms of this contract.

The CONTRACTOR shall provide insurance coverage, which shall be maintained in full force and effect during the term of this contract, as follows:

1. Commercial General Liability Insurance Policy. Provide a Commercial General Liability Insurance Policy, including contractual liability, in adequate quantity to protect against legal liability arising out of contract activity but no less than $1,000,000 per occurrence. Additionally, the CONTRACTOR is responsible for ensuring that any subcontractors provide adequate insurance coverage for the activities arising out of subcontracts.

1. Automobile Liability. In the event that services delivered pursuant to this contract involve the use of vehicles, either owned or unowned by the CONTRACTOR, automobile liability insurance shall be required. The minimum limit for automobile liability is $1,000,000 per occurrence, using a Combined Single Limit for bodily injury and property damage.

1. Marine Insurance. If the CONTRACTOR will be using a vessel or boat in the performance of this contract, the CONTRACTOR shall maintain a Commercial Marine Protection and Indemnity (P&I) Policy with P&I limit of not less than $1,000,000 per occurrence and with a deductible not to exceed $25,000 (to include diving operations if diving is a part of the contracted service for any liability which includes coverage for injury to the crew and passengers).

1. The insurance required shall be issued by an insurance company/ies authorized to do business within the state of Washington, and shall name the state of Washington, its agents and employees as additional insureds under the insurance policy/ies. All policies shall be primary to any other valid and collectable insurance. CONTRACTOR shall instruct the insurers to give AGENCY thirty (30) calendar days advance notice of any insurance cancellation.

The CONTRACTOR shall submit to AGENCY within fifteen (15) calendar days of the contract effective date, a certificate of insurance that outlines the coverage and limits defined in this section. The CONTRACTOR shall submit renewal certificates as appropriate during the term of the contract; the failure of the AGENCY to enforce this term in no way reduces the CONTRACTOR’s responsibilities under this section.

LICENSING, ACCREDITATION AND REGISTRATION

The CONTRACTOR shall comply with all applicable local, state, and federal licensing, accreditation and registration requirements/standards, necessary for the performance of this contract.

LIMITATION OF AUTHORITY

Only the AGENT or AGENT’S delegate by writing (delegation to be made prior to action) shall have the express, implied, or apparent authority to alter, amend, modify, or waive any clause or condition of this contract. Furthermore, any alteration, amendment, modification, or waiver or any clause or condition of this contract is not effective or binding unless made in writing and signed by the AGENT.

MINORITY, WOMEN AND VETERAN-OWNED BUSINESSES

The AGENCY encourages participation by minority and women-owned business enterprises certified by the Office of Minority and Women’s Business Enterprises (OMWBE); and veteran-owned businesses certified by the Department of Veteran’s Affairs (DVA). If any part of this contract is subcontracted to an OMWBE or DVA-certified firm the CONTRACTOR shall submit a statement of participation indicating what OMWBE or DVA certified firm was used and the dollar amount of their subcontracts.

COMPLIANCE WITH NONDISCRIMINATION LAWS

During the performance of this contract, the CONTRACTOR shall comply with all federal and state nondiscrimination laws, regulations and policies. In the event of the CONTRACTOR'S non-compliance or refusal to comply with any nondiscrimination law, regulation, or policy, this contract may be rescinded, canceled or terminated in whole or in part, and the CONTRACTOR may be declared ineligible for further contracts with the AGENCY. The CONTRACTOR shall, however, be given a reasonable time in which to cure this noncompliance. Any dispute may be resolved in accordance with the "Disputes" procedure set forth herein.

PREVAILING WAGE

If work performed by CONTRACTOR employees is subject to Chapter 39.12 of the Revised Code of Washington, the CONTRACTOR shall pay the prevailing rate of wages to all CONTRACTOR workers, laborers or mechanics in the performance of any part of the work described in the contract in accordance with state law and Department of Labor and Industries rules and regulations. The CONTRACTOR shall comply with the filing requirements required by this statute, including Statement of Intent to Pay Prevailing Wage, and Affidavit of Wages Paid.

PRIVACY

Personal information including, but not limited to, “Protected Health Information,” collected, used, or acquired in connection with this contract shall be protected against unauthorized use, disclosure, modification or loss. CONTRACTOR shall ensure its directors, officers, employees, subcontractors or agents use personal information solely for the purposes of accomplishing the services set forth herein. CONTRACTOR and its subcontractors agree not to release, divulge, publish, transfer, sell or otherwise make known to unauthorized persons personal information without the express written consent of the agency or as otherwise required by law.

Any breach of this provision may result in termination of the contract and the demand for return of all personal information. The CONTRACTOR agrees to indemnify and hold harmless the AGENCY for any damages related to the CONTRACTOR’S unauthorized use of personal information.

PUBLICITY

The CONTRACTOR agrees to submit to the AGENCY all advertising and publicity matters relating to this contract wherein the AGENCY’S name is mentioned or language used from which the connection of the AGENCY’S name may, in the AGENCY’S judgment, be inferred or implied. The CONTRACTOR agrees not to publish or use such advertising and publicity matters without the prior written consent of the AGENCY.

RECORDS MAINTENANCE

The CONTRACTOR shall maintain books, records, documents, data and other evidence relating to this contract and performance of the services described herein, including but not limited to accounting procedures and practices that sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this contract. The CONTRACTOR shall retain such records for a period of six years following the date of final payment. At no additional cost, these records, including materials generated under the contract, shall be subject at all reasonable times to inspection, review or audit by the AGENCY, personnel duly authorized by the AGENCY, the Office of the State Auditor, and federal and state officials so authorized by law, regulation or agreement.