Sole_Source_Notification_20240443.pdf

It is the intent of Washington State to promote open competition and transparency for all contracts for goods and services. In accordance with Department of Enterprise Service (DES) policy #DES-

140-00, all intended sole source contracts must be made available for public inspection for a period of not less than fifteen (15) working days before the start date of the contract. This Sole Source

Notification satisfies the requirement.

This Sole Source Notification is available at the Office of Superintendent of Public Instruction

(OSPI) website and at the Department of Enterprise Services, Washington Electronic Business

Solution (WEBS) Procurement website under the following commodity codes:

470-67-Speech Synthesizers; 470-79-Vision Impaired Mobility Devices and Equipment; 475-49-

Instructional Aids and Training Programs, Medical (See Class 345 and/or Class 785 for Manikins and Models); 625-39-Eye Testing Equipment (For Intraocular Pressure, Refraction, etc.) (See item

97 for Vision Testers); 625-40-Eyesight Testing Charts; 625-95-Testing and Measuring Equipment

(For Optical Components): Spherometers, etc.; 625-97-Vision Testers (Not Opthalmology; See item

39); 710-54-Audiometers, Calibrators, and Accessories (Including Audiometric Examining Rooms);

710-73-Hearing Devices (See 710-72 for Hearing Aids); 710-92-Reading Devices (For the Vision

Impaired); 710-95-Speech Training Equipment (For the Hearing Impaired); 785-17-Blind

Teaching and Training Equipment and Supplies (See Class 600 for Braille Writers and Printers).

The Office of Superintendent of Public Instruction (OSPI) intends to make a $110,375.44 sole source purchase from School Health Corporation for Allyn Spot Vision Screeners with carrying cases, and Maico Easytone Audiometer devices with warranty and product training. The purchase will include a contract with a period of August 2024, through August 2029.

Consultants contemplating the above requirements shall submit capability statements detailing their ability to meet the state’s requirements no later than 3:00 pm on August 5, 2024.

Capability statements must address the following state requirements:

• Ability to sell Welch Allyn Spot Vision Screener with 5-year SmartCare warranty that covers parts and labor, free shipping, free loaner device, drop protection, carrying case, and MAICO easyTone Pure Tone Headphone Audiometer with Tablet

• Ability to provide remote technical support and onsite technical asssitance

In the absence of other qualified sources, and pending approval by the Department of Enterprise

Services, it is OSPI’s intent to make a sole source award of the contract mentioned above to

School Health Corporation.

Sole Source Notification

Spot Vision Screening Devices https://www.k12.wa.us/about-ospi/contracting-ospi/competitive-procurements https://www.k12.wa.us/about-ospi/contracting-ospi/competitive-procurements https://fortress.wa.gov/ga/webs/ https://fortress.wa.gov/ga/webs/

OSPI Sole Source Contract 20240443 Page 2 of 5

Although this Sole Source Notification is not an invitation to bid, if you feel your firm is able to provide the goods or services listed above, you may submit a capability statement to:

Kyla Moore

Office of Superintendent of Public Instruction

Email: contracts@k12.wa.us

In accordance with DES Sole Source policy process #PRO-DES-140-00A, the following documents are attached:

• Attachment 1 – A copy of the Sole Source Contract Filing Justification

• Attachment 2 – A copy of the proposed draft sole source contract in significantly final form

Attachment 1 – Sole Source Contract Filing Justification

Specific Problem or Need

• What is the business need or problem that requires this contract?

RCW 28A.210.020 requires every district screen for the visual and auditory acuity of all children attending schools in their districts to ascertain which if any of such children have defects sufficient to retard them in their studies within specific grades. However, due to the nature of the mobile lifestyle of migrant students and their families, not all students may be screened within a specific time frame. Washington State WAC 246-760-071 supports the use of instrument-based screening devices in addition to optotype-based tools such as those proposed.

Migrant-funded districts are at the forefront for the identification of vision and hearing problems among migrant students and can make appropriate referrals. The efficacy and time required to screen migrant students can be substantially improved if personnel are equipped with adequate tools to screen for impairments related to visual acuity and hearing. With the growing number of MEP-funded nurses, and focus on supplemental vision and hearing services (particularly in grades not required by the state in grades four, six, eight, nine, ten, eleven, and twelve, including migrant eligible out-of-school youth), there has been a growing need for additional equipment to continue the collaborative work within the Migrant Education Program, schools and districts to refer migrant students to community resources to help obtain corrective lenses, hearing aids, or provider consultation. Each vision and hearing device is to be paired with a MEP-funded nurse and to continue to existing lending library managed by MEP ESD partners at ESD 123, 105, 171, and 189 specifically to support migrant eligible youth as the demand has grown. Other MEP-funded school districts have established the use of the vision screening device routinely for migrant eligible youth which merits the allocation of an individual device to use without any interruption due to the size of eligible youth potentially eligible for supplemental screening. Additionally, this service include a new warranty coverage for the existing vision screening devices purchased which has expired earlier this year.

mailto:contracts@k12.wa.us

OSPI Sole Source Contract 20240443 Page 3 of 5

Sole Source Criteria

• Describe the unique features, qualifications, abilities or expertise of the contractor proposed for this sole source contract.

Welch Allyn, Inc., a medical supply company, and School Health Corporation are engaged in an arrangement under which School Health is Welch Allyn’s strategic distributor of the Spot Vision Screener in the U.S. education and non-profit segment.

Due to their relationship with the medical supply company, the proposed contractor offers a unique discount from the original price, continuous technical assistance, rental units during service, and a 5-year warranty that is not offered through other vendors for the desired equipment. The warranty in particular is essential as each vision screening device is quite costly and may necessitate period service as software upgrades are released or should the device accrue damages.

• What kind of market research did the agency conduct to conclude that alternative sources were inappropriate or unavailable? Provide a narrative description of the agency’s due diligence in determining the basis for the sole source contract, including methods used by the agency to conduct a review of available sources such as researching trade publications, industry newsletters and the internet; contacting similar service providers; and reviewing statewide pricing trends and/or agreements.

The agency consulted with the Washington School Nurse Corp, community health care providers, school nurses, school districts, and online-based vendors procuring for alternatives to the solicited purchase. Through online research, the agency determined there is one alternative vendor that did not offer a competitive price and was working with School Health as the product provider which resulted in additional costs.

Additionally, the alternative did not offer some of the technical support which we will lean on to learn to use the solicited hearing equipment for the Migrant Education

Program. School Health confirmed that they are the sole provider of the product coverage with Welch Allyn.

• As part of the market research, include a list of statewide contracts review and/or businesses contacted, date of contact, method of contact (telephone, mail, e-mail, other), and documentation demonstrating an explanation of why those businesses could not or would not, under any circumstances, perform the contract; or an explanation of why the agency has determined that no businesses other than the prospective contractor can perform the contract.

Other businesses reviewed, such as Medline Industries, LP or McKesson Medical-Surgical

Inc. as state vendors, did not offer a 5-year extended warranty include as a part of the new purchase of SPOT devices and existing SPOT devices that has an expired warranty previous offered. The coverage offered by School Health Corporation is a unique partnership not offered by any other vendor per interest letter. As such, it was in the state’s best interest to select a vendor that would honor the proprietary warranty

OSPI Sole Source Contract 20240443 Page 4 of 5 coverage offered by only School Health Corporation to maintain the existing devices under warranty with an additional discount and training on use of equipment in person as well as virtually.

• Per the Supplier Diversity Policy, DES-090-06: was this purchase included in the agency’s forecasted needs report?

No.

• Describe what targeted industry outreach was completed to locate small and/or veteran-owned businesses to meet the agency’s need.

OSPI conducted internet searches including the DES website, to find local merchant for school health equipment. In addition to the internet search, we consulted with internal and external colleagues on state vendors or other recommendations in an attempt to gain the best price and quality.

• What considerations were given to unbundling the goods and/or services in this contract, which would provide opportunities for Washington small, diverse, and/or veteran-owned businesses. Provide a summary of your agency’s unbundling analysis for this contract.

The vendor’s WEBS profile indicates they are 52% female-owned.

• Provide a detailed and compelling description that includes quantification of the costs and risks mitigated by contracting with this contractor (i.e. learning curve, follow-up nature).

The estimated cost with an alternative vender would accrue an additional 10% of the

School Health Cost and discount plus an additional $3,400 per unit for a 5-year warranty, almost half the cost of the screening device alone. School Health offers the 5-year warranty with no additional charge with a 2.5% discount, free shipping, and technical support.

• Is the agency proposing this sole source contract because of special circumstances such as confidential investigations, copyright restrictions, etc.? If so, please describe.

• Is the agency proposing this sole source contract because of unavoidable, critical time delays or issues that prevented the agency from completing this acquisition using a competitive process? If so, please describe. For example, if time constraints are applicable, identify when the agency was on notice of the need for the goods and/or service, the entity that imposed the constraints, explain the authority of that entity to impose them, and provide the timelines within which work must be accomplished.

• What are the consequences of not having this sole source filing approved? Describe in detail the impact to the agency and to services it provides if this sole source filing is not approved.

OSPI Sole Source Contract 20240443 Page 5 of 5

If this contract is not approved, and the agency procures these products from another vendor, the agency estimates the cost to the state will be approximately 38% higher due to higher product cost, warranty costs, and training fees (or no training at all, which presents its own consequence).

Reasonableness of Cost

• Since competition was not used as the means for procurement, how did the agency conclude that the costs, fees, or rates negotiated are fair and reasonable? Please make a comparison with comparable contracts, use the results of a market survey, or employ some other appropriate means calculated to make such a determination.

The quoted cost was a result of negotiation which is reduced and competitive compared to other vendors offering a similar product. Furthermore, the cost offered also includes an extended 5-year warranty whereas other providers offer 1-year warranty with limited coverage compared to School Health.

Attachment 2 – Proposed Draft Sole Source Contract

See next page

Page 1 of 6 Contract 20240443 between OSPI and SCHOOL HEALTH CORPORATION (Rev. 05/22)

CONTRACT FOR SERVICES

Contract No. 20240443 between

SUPERINTENDENT OF PUBLIC INSTRUCTION,

STATE OF WASHINGTON

(hereinafter referred to as Superintendent/OSPI)

Old Capitol Building, PO Box 47200 Olympia, WA 98504-7200 and

SCHOOL HEALTH CORPORATION

(hereinafter referred to as Contractor)

5600 Apollo Drive Rolling Meadows, IL 60008

Employer Identification #36-2425385

In consideration of the promises and conditions contained herein, Superintendent and Contractor do mutually agree as follows:

I. DUTIES OF THE CONTRACTOR

A. The general objectives of this Contract are as follows:

The contractor shall provide ten (10) Welch Allyn Spot Vision Screener with Carry Case, a five- (5-) year warranty for eighteen (18) Welch Allyn Spot Vision Screener with Carry Case, eight (8) MAICO EASYTONE AUDIOMETER devices, and product training.

B. In order to accomplish the general objectives of this Contract, Contractor shall perform the following specific duties to the satisfaction of the Contract Manager:

Within four (4) to seven (7) business days of contract commencement, the Contractor shall ship ten (10) Welch Allyn Spot Vision Screener with Carry Case, a five- (5-) year warranty for eighteen (18) Welch Allyn Spot Vision Screener with Carry Case, and eight (8) MAICO EASYTONE AUDIOMETER devices.

Item and Description Quantity 1003001

SPOT VISION SCREENER W/CASE & 5 YR SMARTCARE SERVICES

EXCLUSIVE SH $1,000 REBATE PER SPOT PURCHASED VALID

JANUARY 1, 2024–MARCH 31, 2024. THIS IS NOT AN AUTOMATIC

REDEMPTION. CUSTOMERS MUST COMPLETE THE ONLINE

REDEMPTION FORM AT HILLROM.COM/SCHOOLHEALTH2024 &

UPLOAD A COPY OF THEIR INVOICE BY MAY 15, 2024

INCLUDES: FREE 5 YEAR SMARTCARE SERVICES WARRANTY WITH

PURCHASE, VALUED AT $1771

1003000SP1

FREE 5 YR SMARTCARE SERVICE WARRANY FOR SPOT VISION

SCREENER

Page 2 of 6 Contract 20240443 between OSPI and SCHOOL HEALTH CORPORATION

Item and Description Quantity 1040843

MAICO EASYTONE AUDIOMETER

1003000

5-YR SMARTCARE SERVICES WARRANTY, SPOT WELCH AL

SERIAL NUMBERS:

JC12135037

JC12135220

JC12135223

JC12135320

JC12135355

JC12135356

JC12135361

In addition to supplying the Spot Vision Screener, Contractor shall provide the following as requested by OSPI:

• Webinar product training or on site train the trainer sessions completed by the School Health project team to learn the equipment and support the training process to end users.

Training may be complete within two (2) to six (6) weeks of delivery of equipment or as agreed upon between Contractor and OSPI.

• Quick reference sheets will be included and laminated to remind end users, in a quick check form, the process and steps to take when screening.

• Ongoing training materials and updated studies will be provided as needed or requested.

• School Health customer service/sales support available 8:00 am - 5:00 pm EST.

• Train the trainer program will include PowerPoint presentation and necessary materials to efficiently train current and new screeners for the program.

C. Equipment Calibration and Maintenance:

• SPOT unit requires periodic calibration and software updates that are provided by School Health Corporation.

• School Health Corporation proposal includes five- (5-) year Partners in Care extended warranty program.

• Exchange Device Coverage- Users can participate in the loaner program.

• This is a service for customers that purchased equipment from School Health. Units can be requested and sent decreasing down time for screening programs.

• Remote Technical Support

• Parts and Labor Included

• Drop protection and replacement battery included and will be replaced when needed during the five- (5-) year warranty period

• School Health is an authorized distributor for Welch Allyn and has a "satisfaction guaranteed policy" (see attached distributor letter)

Page 3 of 6 Contract 20240443 between OSPI and SCHOOL HEALTH CORPORATION

D. The Contractor shall provide the following deliverables to the OSPI Contract Manager by the dates indicated below:

SCHEDULE OF DELIVERABLES

Deliverable Due Date

1. (10) SPOT VISION SCREENER W/CASE

Within four (4) to seven

(7) business days of contract commencement

2. (18) 5-YR SMARTCARE SERVICES WARRANTY

Within four (4) to seven

(7) business days of contract commencement

3. (8) MAICO EASYTONE AUDIOMETER

Within four (4) to seven

(7) business days of contract commencement

4. Webinar product training Within two (2) to six (6) weeks of delivery of equipment.

II. CONDITIONS OF COMMENCEMENT OF PERFORMANCE

AND

SCHEDULE OF PERFORMANCE

Contractor shall not commence performance, or be entitled to compensation or reimbursement for any services rendered, prior to the occurrence of each of the following conditions: (1) This Contract must be executed by a representative of the Contractor and the Superintendent; (2) Provisions of Chapter 39.26 RCW require the Agency to file this sole source Contract with the Department of Enterprise Services (DES) for approval; no Contract so filed is effective nor shall work commence under it until the tenth (10th) working day following the date of filing, subject to DES approval. In the event DES fails to approve the Contract, the Contract shall be null and void;

and, (3) Contract Manager must confirm the occurrence of conditions number one (1) and two (2) and notify the Contractor to commence performance.

The schedule of performance of Contractor’s duties is as follows subject, however, to the three

(3) prior conditions to commencement of performance set forth immediately above:

August 6, 2024, date of approval by DES, or date of execution, whichever is later, through August 1, 2029, or 5 years from date of contract commencement, whichever is later.

III. DUTIES OF THE SUPERINTENDENT

A. In consideration of Contractor’s satisfactory performance of the duties set forth herein, Superintendent shall compensate Contractor in an amount not to exceed a total of one hundred ten thousand three hundred seventy-five dollars and forty-four cents ($110,375.44), per Section III.B. Payment for satisfactory performance shall not exceed this amount unless the parties mutually agree to a higher amount prior to the commencement of any work, which will cause the maximum payment to be increased.

Page 4 of 6 Contract 20240443 between OSPI and SCHOOL HEALTH CORPORATION

One hundred percent (100%) of the funds for the payment of this Contract are provided by federal programs Title I, Part C. Migrant Education Program, therefore, Contractor shall comply with Federal Grant Terms and Conditions, attached hereto as Attachment A1.

All expenses necessary to the Contractor’s performance of this Contract not specifically mentioned in the Contract shall be borne in full by the Contractor.

B. Payment shall be made to the Contractor as follows:

One-time payment based upon the successful completion of contract duties, including training, and an invoice submitted by the Contractor upon completion of the work specified.

Item and Description Quantity Price 1003001

SPOT VISION SCREENER W/CASE & 5 YR SMARTCARE

SERVICES

EXCLUSIVE SH $1,000 REBATE PER SPOT PURCHASED VALID

JANUARY 1, 2024–MARCH 31, 2024. THIS IS NOT AN AUTOMATIC

REDEMPTION. CUSTOMERS MUST COMPLETE THE ONLINE

REDEMPTION FORM AT HILLROM.COM/SCHOOLHEALTH2024 &

UPLOAD A COPY OF THEIR INVOICE BY MAY 15, 2024

INCLUDES: FREE 5 YEAR SMARTCARE SERVICES WARRANTY

WITH

PURCHASE, VALUED AT $1771

10 $8,360 each, no to exceed $83,600

1003000SP1

FREE 5 YR SMARTCARE SERVICE WARRANY FOR SPOT VISION

SCREENER

10 $0

1040843

MAICO EASYTONE AUDIOMETER

8 $1,694 each, not to exceed $13,552

1003000

5-YR SMARTCARE SERVICES WARRANTY, SPOT WELCH AL

SERIAL NUMBERS:

JC12135037

JC12135220

JC12135223

JC12135320

JC12135355

JC12135356

JC12135361

8 $1,652.93 each, not to exceed $13,223.44

The invoice will be paid only after approval by the OSPI Contract Manager and Agency Financial Services, OSPI. The invoice shall include the Contract number, and document to the OSPI Contract Manager’s satisfaction a description of the work performed and payment requested. Within approximately thirty (30) calendar days of the OSPI Contract Manager receiving and approving the invoice, payment will be mailed or electronically transferred to the Contractor by Agency Financial Services, OSPI.

Page 5 of 6 Contract 20240443 between OSPI and SCHOOL HEALTH CORPORATION

IV. CONTRACT MANAGEMENT

The following shall be the contact person for all communications and billings regarding the performance of this contract. Any changes to this information shall be communicated to the other party in writing as soon as reasonably possible.

Contractor OSPI

V. INCORPORATION OF ATTACHMENTS AND ORDER OF PRECEDENCE

Each of the attachments listed below is by this reference hereby incorporated into this Contract.

In the event of an inconsistency in this Contract, the inconsistency shall be resolved by giving precedence in the following order:

• Applicable Federal and state of Washington statutes and regulations

• Special Terms and Conditions as contained in this basic contract instrument

• Attachment A – Contract for Services, General Terms and Conditions

• Attachment A1 – Federal Grant Terms and Conditions

• Any other provision, term or material incorporated herein by reference or otherwise incorporated.

VI. APPROVAL

This Contract shall be subject to the written approval of the Superintendent’s authorized representative and shall not be binding until so approved. The Contract may be altered, amended, or waived only by a written amendment executed by both parties.

We the undersigned agree to the terms of the foregoing Contract.

School Health Corporation Superintendent of Public Instruction State of Washington

Signature Kyla L. Moore, Contracts Administrator

Printed Name Date

Title

Date

Page 6 of 6 Contract 20240443 between OSPI and SCHOOL HEALTH CORPORATION

Who certifies that he/she is the Contractor identified herein, OR a person duly qualified and authorized to bind the Contractor so identified to the foregoing Agreement.

Approved as to FORM ONLY by the Assistant Attorney General

Page 1 of 14 Contract 20240443 Attachment A – General Terms and Conditions between OSPI and

FORM SPI D-283 (Rev. 12/23)

Attachment A Contract for Services

GENERAL TERMS AND CONDITIONS

Definitions. As used throughout this Contract and General Terms and Conditions, the following terms shall have the meaning set forth below:

“Contract” or “Agreement” means the entire written agreement between OSPI and the Contractor, including any attachments, exhibits, documents, or materials incorporated by reference. Contract and Agreement may be used interchangeably.

"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.

“Services” means all work performed or provided by Contractor pursuant to this Contract.

“Statement of Work” or “SOW” or “Scope of Work” means a detailed description of the work activities the Contractor is required to perform under the terms and conditions of this Contract, including the deliverables and timeline.

"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.

"Superintendent" shall mean the Office of Superintendent of Public Instruction (OSPI) of the State of Washington, any division, section, office, unit or other entity of the Superintendent, or any of the officers or other officials lawfully representing the Superintendent. Superintendent and OSPI may be used interchangeably.

1. Access to Data. In compliance with Chapter 39.26 RCW, the Contractor shall provide access to data generated under this Contract to the Superintendent, 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.

2. Alterations and Amendments. This Contract may be amended only 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.

3. 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.

4. 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 Superintendent.

5. Assurances. The Superintendent and the Contractor agree that all activity pursuant to this

Contract will be in accordance with all applicable current federal, state and local laws, rules and regulations.

Page 2 of 14 Contract 20240443 Attachment A – General Terms and Conditions between OSPI and

FORM SPI D-283 (Rev. 12/23)

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

7. Audit Requirements. If the Contractor is a Subrecipient of federal awards as defined by the

Office of Management and Budget (OMB) CFR, Part 200, Subpart F, and expends seven hundred and fifty thousand dollars ($750,000) or more in federal awards (does not apply to contracts for goods and services) from all federal sources in any fiscal year beginning on or after December 26, 2014, the Contractor shall procure at their expense a single or program-specific audit for that year. The Contractor shall incorporate OMB CFR, Part 200, Subpart F audit requirements into all contracts between the Contractor and its Subcontractors who are Subrecipients of federal awards. The Contractor shall comply with any future amendments to OMB and any successor or replacement Circular or regulation.

8. Budget Revisions. Any monetary amount budgeted by the terms of this Contract for various activities and line-item objects of expenditure may be revised without prior written approval of Superintendent, so long as the revision is no more than ten percent (10%) of the original line item amount and the increase in an amount is offset by a decrease in one or more other amounts equal to or greater than the increase. All other budget revisions exceeding ten percent (10%) shall only be made with the prior written approval of the Superintendent.

9. Certification Regarding Debarment, Suspension, and Ineligibility. The Contractor certifies that neither it nor its principals are debarred, suspended, proposed for debarment, or voluntarily excluded from participation in transactions by any federal department or agency. The Contractor further certifies that they will ensure that potential subcontractors or any of their principals are not debarred, suspended, proposed for debarment, or voluntarily excluded from participation in covered transactions by any federal department or agency.

“Covered transactions” include procurement contracts for goods that are expected to equal or exceed twenty-five thousand dollars ($25,000). Contractor may do so by obtaining a certification statement from the potential subcontractor or subrecipient or by checking online at the System for Award Management (SAM), Excluded Parties List. The Contractor shall immediately notify the Superintendent if, during the term of this contract, Contractor becomes debarred. The Superintendent may immediately terminate this Contract by providing Contractor written notice if Contractor becomes debarred during the term of this Contract.

The Contractor also certifies that neither it nor its principals are debarred, suspended, or proposed for debarment from participation in transactions by any state department or agency. The Contractor further certifies that they will ensure that potential subcontractors or any of their principals are not debarred, suspended, or proposed for debarment from participation in covered transactions by any state department or agency.

10. Certification Regarding Lobbying. The Contractor certifies that Federal-appropriated funds will not be used to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress or an employee of a member of Congress in obtaining any Federal contract, grant or any other award covered by 31 USC 1352. Contractor must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Contractor shall require its subcontractors to certify compliance with this provision.

Page 3 of 14 Contract 20240443 Attachment A – General Terms and Conditions between OSPI and

FORM SPI D-283 (Rev. 12/23)

11. Certification Regarding Wage Violations. The Contractor certifies that within three (3) years prior to the date of execution of this Contract, Contractor has 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.

The Contractor further certifies that it will remain in compliance with these requirements during the term of this Contract. Contractor will immediately notify the Superintendent of any finding of a willful violation entered by the Washington Department of Labor and Industries or through a civil judgment entered by a court of limited or general jurisdiction entered during the term of this Contract.

12. Change in Status. In the event of substantive change in the legal status, organizational structure, or fiscal reporting responsibility of the Contractor, Contractor agrees to notify the Superintendent of the change. Contractor shall provide notice as soon as practicable, but no later than thirty (30) days after such a change takes effect.

13. Confidentiality. The Contractor acknowledges that all of the data, material and information which originates from this Contract, and any student assessment data, material and information which will come into its possession in connection with performance under this Contract, consists of confidential data owned by the Superintendent or confidential personally identifiable data subject to the federal Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) or other privacy laws, and that the data must be secured and protected from unauthorized disclosure by the Contractor. The Contractor is wholly responsible for compliance with FERPA requirements.

The Contractor, therefore, agrees to hold all such material and information in strictest confidence, not to make use thereof other than for the performance of this Contract, to release it only to authorized employees and agents requiring such information and not release or disclose it to any other party. The Contractor agrees to release such information or material only to employees and agents who have signed a written agreement expressly prohibiting disclosure or usages not specifically authorized by this Contract.

14. 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 copyright shall be owned by the Superintendent. The Superintendent shall be considered the author of such Materials. If Materials are not considered “works for hire”, Contractor hereby irrevocably assigns all right, title, and interest in Materials, including all intellectual property rights, to the Superintendent 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. Copyright ownership includes the right to patent, register and the ability to transfer these rights.

Contractor understands that, except where otherwise agreed to in writing or approved by the Superintendent or designee, all original works of authorship produced under this Contract shall carry a Creative Commons Attribution License, version 4.0 or later.

http://app.leg.wa.gov/RCW/default.aspx?cite=49.48.082 http://app.leg.wa.gov/RCW/default.aspx?cite=49.46 http://app.leg.wa.gov/RCW/default.aspx?cite=49.48 http://app.leg.wa.gov/RCW/default.aspx?cite=49.52 http://creativecommons.org/licenses/by/4.0/

Page 4 of 14 Contract 20240443 Attachment A – General Terms and Conditions between OSPI and

FORM SPI D-283 (Rev. 12/23)

All Materials the Contractor has adapted from others’ existing openly licensed resources must be licensed with the least restrictive open license possible that is not in conflict with existing licenses.

For Materials that are delivered under the Contract, but that incorporate pre-existing materials not produced under the Contract, Contractor will license the materials to allow others to translate, reproduce, distribute, prepare derivative works, publicly perform, and publicly display. If the Contractor would like to limit these pre-existing portions of the work to non-commercial use, the Creative Commons Attribution-NonCommercial (preferred) or Creative Commons Attribution-NonCommercial-ShareAlike licenses, version 4.0 or later, are acceptable for these specific sections.

The Contractor warrants and represents that Contractor has all rights and permissions, including intellectual property rights, moral rights and rights of publicity, necessary to apply such a license.

The Contractor shall exert all reasonable effort to advise the Superintendent, at the time of delivery of data furnished under this Contract, of all known or potential invasions of privacy contained therein and of any portion of such document which was not produced in the performance of this Contract. The Superintendent 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 Superintendent shall have the right to modify or remove any restrictive markings placed upon the data by the Contractor.

15. 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 agent maintained by the Contractor for the purpose of securing business. The Superintendent 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 fees.

16. Disputes. In the event that a dispute arises under this Contract, it shall be determined by a

Dispute Board in the following manner: (1) The Superintendent shall appoint a member to the Dispute Board; (2) the Contractor shall appoint a member to the Dispute Board; (3) the Superintendent and the Contractor shall jointly appoint a member to the Dispute Board; (4) the Dispute Board shall evaluate the dispute and make a determination of the dispute; and, the determination of the Dispute Board shall be final and binding on the parties hereto.

As alternatives to the above Dispute Board process: (1) if the dispute is between two or more state agencies, any one of the agencies may request intervention by the Governor, as provided by 43.17.330 RCW, in which event the Governor’s process shall control; and, (2) if the dispute is between a non-state agency and another state agency or non-state agency party to this Contract, all the disputing parties may mutually agree to mediation prior to submitting the dispute to a Dispute Board in the event the dispute is not resolved pursuant to mediation within an agreed-upon time period.

17. Duplicate Payment. The Superintendent 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.

https://nam02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fcreativecommons.org%2Flicenses%2Fby-nc%2F4.0%2F&data=04%7C01%7CKyla.Moore%40k12.wa.us%7Cbf2159e520514b9ffd8208da03aeaeb3%7Cb2fe5ccf10a546feae45a0267412af7a%7C0%7C0%7C637826346034509735%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=%2BiJpbpB9W5%2FYSTNRO132H9HXSjzPhtDA6mAmiZxaBBs%3D&reserved=0 https://nam02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fcreativecommons.org%2Flicenses%2Fby-nc-sa%2F4.0%2F&data=04%7C01%7CKyla.Moore%40k12.wa.us%7Cbf2159e520514b9ffd8208da03aeaeb3%7Cb2fe5ccf10a546feae45a0267412af7a%7C0%7C0%7C637826346034509735%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=Fyv58iV67VZxxN2u5s3J12fK%2F%2FSNz6ycUAOcfnQflqE%3D&reserved=0 https://nam02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fcreativecommons.org%2Flicenses%2Fby-nc-sa%2F4.0%2F&data=04%7C01%7CKyla.Moore%40k12.wa.us%7Cbf2159e520514b9ffd8208da03aeaeb3%7Cb2fe5ccf10a546feae45a0267412af7a%7C0%7C0%7C637826346034509735%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=Fyv58iV67VZxxN2u5s3J12fK%2F%2FSNz6ycUAOcfnQflqE%3D&reserved=0

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FORM SPI D-283 (Rev. 12/23)

18. Electronic signature. Any signature page delivered via fax machine or electronic image scan, receipt acknowledged in each case, shall be binding to the same extent as an original, wet ink signature page. Any Party who delivers such a signature page agrees to later deliver an original counterpart to any Party which requests it.

19. Entire Agreement. This Contract contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Contract shall be deemed to exist or to bind any of the parties hereto.

20. Ethical Conduct. Neither the Contractor nor any employee or agent of the Contractor shall participate in the performance of any duty or service in whole or part under this Contract in violation of, or in a manner that violates any provision of the Ethics in Public Service law at Chapter 42.52 RCW, RCW 42.17A.550, RCW 42.17A.555, and 41.06.250 prohibiting the use of public resources for political purposes.

Contractor represents and warrants that it complies fully with all applicable procurement ethics restrictions including, but not limited to, restrictions against Contractor providing gifts or anything of economic value, directly or indirectly, to the Superintendent’s employees.

21. Governing Law and Venue. 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 Superior Court for Thurston County.

22. Indemnification. To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless the Superintendent and all officials, agents, and employees of the Superintendent, from and against all claims for injuries or death arising out of or resulting from the performance of this 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. Additionally, “claims” shall include but not be limited to, assertions that the use or transfer of any software, book, document, report, film, tape or sound reproduction or material of any kind, delivered hereunder, constitutes an infringement of any copyright, patent, trademark, trade name, or otherwise results in an unfair trade practice or in unlawful restraint of competition. Contractor’s obligation to indemnify, defend and hold harmless includes any claim by Contractor’s agents, employees, representatives, or any subcontractor or its employees.

Contractor expressly agrees to indemnify, defend, and hold harmless the Superintendent for any claim out of or incident to Contractor’s or subcontractor’s performance or failure to perform the Contract. Contractor’s obligation to indemnify, defend, or hold harmless the Superintendent shall not be eliminated or reduced by any actual or alleged concurrent negligence by Superintendent or its agents, employees, or officials.

Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and hold harmless Superintendent and its agents, employees, or officials.

23. Independent Capacity of the Contractor. The parties intend that an independent Contractor relationship will be created by this Contract. The Contractor and his/her employees or agents performing under this Contract are not employees or agents of the Superintendent. The Contractor will not hold himself/herself out as nor claim to be an officer or employee of the

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Superintendent or of the state of Washington by reason hereof, nor will the Contractor make any claim or right, privilege, or benefit which would accrue to such employee under law.

Conduct and control of the work will be solely with the Contractor.

24. Insurance.

a. Worker’s Compensation Coverage. The Contractor shall at all times comply with all applicable worker’s compensation, occupational disease, and occupational health and safety laws, statutes, and regulations to the fullest extent applicable. This requirement includes the purchase of industrial insurance coverage for the Contractor’s employees, as may now hereafter be required of an “employer” as defined in Title 51 RCW. Such worker’s compensation and occupational disease requirements shall include coverage for all employees of the Contractor, and for all employees of any subcontract retained by the Contractor, suffering bodily injury (including death) by accident or disease, which arises out of or in connection with the performance of this Contract. Satisfaction of these requirements shall include, but shall not be limited to:

1) Full participation in any required governmental occupational injury and/or disease insurance program, to the extent participation in such a program is mandatory in any jurisdiction;

2) Purchase worker’s compensation and occupational disease insurance benefits to employees in full compliance with all applicable laws, statutes, and regulations, but only to the extent such coverage is not provided under mandatory governmental program in “a” above, and/or;

3) Maintenance of a legally permitted and governmentally approved program of self-insurance for worker’s compensation and occupational disease.

Except to the extent prohibited by law, the program of the Contractor’s compliance with worker’s compensation and occupational disease laws, statutes, and regulations in 1), 2), and 3) above shall provide for a full waiver of rights of subrogation against the Superintendent, its directors, officers, and employees.

If the Contractor, or any subcontractor retained by the Contractor, fails to effect and maintain a program of compliance with applicable worker’s compensation and occupational disease laws, statutes, and regulations and the Superintendent incurs fines or is required by law to provide benefits to such employees, to obtain coverage for such employees, the Contractor will indemnify the Superintendent for such fines, payment of benefits to Contractor or subcontractor employees or their heirs or legal representatives, and/or the cost of effecting coverage on behalf of such employees.

Any amount owed the Superintendent by the Contractor pursuant to the indemnity may be deducted from any payments owed by the Superintendent to the Contractor for the performance of this Contract.

b. Proof of Insurance. Certificates and or evidence satisfactory to the Superintendent confirming the existence, terms and conditions of all insurance required above shall be delivered to the Superintendent within five (5) days of the Contractor’s receipt of Authorization to Proceed.

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FORM SPI D-283 (Rev. 12/23)

c. General Insurance Requirements. Contractor shall, at all times during the term of the Contract and at its cost and expense, buy and maintain insurance of the types and amounts listed above. Failure to buy and maintain the required insurance may result in the termination of the Contract at the Superintendent’s option. By requiring insurance herein, Superintendent does not represent that coverage and limits will be adequate to protect Contractor and such coverage and limits shall not limit Contractor’s liability under the indemnities and reimbursements granted to the Superintendent in this Contract.

Contractor shall include all subcontractors as insureds under all required insurance policies, or shall furnish proof of insurance and endorsements for each subcontractor.

Subcontractor(s) must comply fully with all insurance requirements stated herein.

Failure of subcontractor(s) to comply with insurance requirements does not limit Contractor’s liability or responsibility.

25. Licensing and Accreditation Standards. The Contractor shall comply with all applicable local, state, and federal licensing, accreditation and registration requirements/standards, necessary to the performance of this Contract.

26. Limitation of Authority. Only the Superintendent or the Superintendent’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 Superintendent.

27. Nondiscrimination.

a. Nondiscrimination Requirement. During the term of this Contract, the Contractor, including any subcontractor, shall comply with all the federal and state nondiscrimination laws, regulations and policies, which are otherwise applicable to the Superintendent. Accordingly, on the bases enumerated at RCW 49.60.530(3), no person shall, on the ground of sex, race, creed, religion, color, national origin, marital status, families with children, age, veteran or military status, sexual orientation, gender expression, gender identity, disability, or the use of a trained dog guide or service animal, be unlawfully excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any activity performed by the Contractor and its agents under this Contract. In addition, Contractor, including any subcontractor, shall give written notice of this nondiscrimination requirement to any labor organizations with which Contractor, or subcontractor, has a collective bargaining or other agreement.

b. Obligation to Cooperate. Contractor, including any subcontractor, shall cooperate and comply with any Washington state agency investigation regarding any allegation that Contractor, including any subcontractor, has engaged in discrimination prohibited by this Contract pursuant to RCW 49.60.530(3).

c. Default. Notwithstanding any provision to the contrary, the Superintendent may suspend Contractor, including any subcontractor, upon notice of a failure to participate and cooperate with any state agency investigation into alleged discrimination prohibited by this Contract, pursuant to RCW 49.60.530(3). Any such suspension will remain in place until Superintendent receives notification that Contractor, including any

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FORM SPI D-283 (Rev. 12/23) subcontractor, is cooperating with the investigating state agency. In the event Contractor, or subcontractor, is determined to have engaged in discrimination identified at RCW 49.60.530(3), the Superintendent may terminate this Contract in whole or in part, and Contractor, subcontractor, or both, may be referred for debarment as provided in RCW 39.26.200. Contractor or subcontractor may be given a reasonable time in which to cure this noncompliance, including implementing conditions consistent with any court-ordered injunctive relief or settlement agreement.

d. Remedies for Breach. Notwithstanding any provision to the contrary, in the event of

Contract termination or suspension for engaging in discrimination, Contractor, subcontractor, or both, shall be liable for contract damages as authorized by law including, but not limited to, any cost difference between the original contract and the replacement or cover contract and all administrative costs directly related to the replacement contract, which damages are distinct from any penalties imposed under Chapter 49.60, RCW.