Solicitation 5400023659.docx

State of South Carolina

REQUEST FOR PROPOSALS

(Competitive Negotiations)

Solicitation Number:

Date Issued:

Procurement Officer:

Phone:

E-Mail Address:

Mailing Address:

5400023659 08/26/2022 Johanne M. Sullivan, CPPO, CPPB 803-737-3416 jmsullivan@mmo.sc.gov SFAA, Div. of Procurement Services 1201 Main Street, Suite 600 Columbia SC 29201

DESCRIPTION: Enterprise Resource Planning System

USING GOVERNMENTAL UNIT: Clemson University

SUBMIT YOUR OFFER ON-LINE AT THE FOLLOWING URL: http://www.procurement.sc.gov

SUBMIT OFFER BY (Opening Date/Time): 11/29/2022 11:00 AM (See Section L - Instructions, Conditions, and Notices to Offerors)

QUESTIONS MUST BE RECEIVED BY: 09/21/2022 5:00 PM (See Section L - Instructions, Conditions, and Notices to Offerors)

NUMBER OF COPIES TO BE SUBMITTED: Online Submission

CONFERENCE TYPE: Pre-Proposal

DATE & TIME: 09/12/2022 2:30 PM

(As appropriate, see Section L - Instructions, Conditions, and Notices to Offerors) LOCATION: Microsoft Teams meeting (email jmsullivan@mmo.sc.gov before 12:00 noon on 09/09/2022 for log-on instructions)

TABLE OF CONTENTS

PART 3 - LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACHMENTS

PART 4 - REPRESENTATIONS AND INSTRUCTIONS

You must submit a signed copy of this form with Your Offer. In accordance with the solicitation the undersigned agrees, if this offer is accepted within two hundred and ten (210) calendar days from the date for receipt of offers specified above, to furnish any or all items upon which prices are offered at the price set opposite each item, delivered at the designated point(s), within the time specified in the schedule. (See Section L - Instructions, Conditions, and Notices to Offerors)

NAME OF OFFEROR

(full legal name of business submitting the offer) Any award issued will be issued to, and the contract will be formed with, the entity identified as the Offeror. The entity named as the offeror must be a single and distinct legal entity. Do not use the name of a branch office or a division of a larger entity if the branch or division is not a separate legal entity, i.e., a separate corporation, partnership, sole proprietorship, etc.

AUTHORIZED SIGNATURE

(Person must be authorized to submit binding offer to contract on behalf of Offeror.)

DATE SIGNED

TITLE

(business title of person signing above)

STATE VENDOR NO.

(Register to Obtain S.C. Vendor No. at www.procurement.sc.gov)

PRINTED NAME

(printed name of person signing above)

STATE OF INCORPORATION

(If you are a corporation, identify the state of incorporation.)

COVER PAGE

PAGE TWO

(Return Page Two with Your Offer) OFFEROR'S TYPE OF ENTITY: (Check one) (See " Section L - Instructions, Conditions, and Notices to Offerors)

___ Sole Proprietorship ___ Partnership ___ Other_____________________________

___ Corporate entity (not tax-exempt) ___ Corporation (tax-exempt) ___ Government entity (federal, state, or local)

HOME OFFICE ADDRESS (Address for offeror's home office / principal place of business)

NOTICE ADDRESS (Address to which all procurement and contract related notices should be sent.) (See "Notice" clause)

_________________________________________________ Area Code - Number - Extension Facsimile

E-mail Address

ORDER ADDRESS (Address to which purchase orders will be sent) (See "Purchase Orders and "Invoicing Instructions" clauses)

____Order Address same as Home Office Address ____Order Address same as Notice Address (check only one)

ACKNOWLEDGMENT OF AMENDMENTS

Offerors acknowledges receipt of amendments by indicating amendment number and its date of issue. (See Section L - Instructions, Conditions, and Notices to Offerors)

AWARD (To be completed by the State)

MAXIMUM CONTRACT PERIOD:

PAGE TWO

End of PAGE TWO

PAGE THREE (ONLY TO BE USED WITH DUAL PRIME OPERATING MODELS)

(RETURN PAGE THREE WITH THE OFFER ONLY IF YOU ARE SUBMITTING A DUAL PRIME OFFER)

If two Dual Prime Offerors are submitting a Dual Prime Offer pursuant to the Dual Prime Operating Model as defined and permitted in this solicitation, then the Systems Integrator Offeror must submit a completed and signed copy of this form with the Dual Prime Offer. By signing, Offeror agrees to be bound by the terms of the Solicitation and agrees to hold its Offer open for a minimum of two hundred and ten (210) calendar days after the Opening Date. (See "Signing each Offer" provision.)

NAME OF OFFEROR

(full legal name of business submitting the offer) Any award issued will be issued to, and the contract will be formed with, the entity or entities identified as the Offeror(s). The entity(ies) named as the Offeror must be a single and distinct legal entity(ies). Do not use the name of a branch office or a division of a larger entity if the branch or division is not a separate legal entity, i.e., a separate corporation, partnership, sole proprietorship, etc.

AUTHORIZED SIGNATURE

(Person must be authorized to submit binding offer to contract on behalf of Offeror.)

DATE SIGNED

TITLE

(business title of person signing above)

STATE VENDOR NO.

(Register to Obtain S.C. Vendor No. at www.procurement.sc.gov)

PRINTED NAME

(printed name of person signing above)

STATE OF INCORPORATION OR ORGANIZATION

(If Offeror is a corporation, or LLC identify the state of formation)

OFFEROR'S TYPE OF ENTITY: (Check one) (See "Signing each Offer" provision.)

___ Sole Proprietorship ___ Partnership ___ Other_____________________________

___ Corporate entity (not tax-exempt) ___ Corporation (tax-exempt) ___ Government entity (federal, state, or local)

Area Code - Number - Extension Facsimile

E-mail Address

PAYMENT ADDRESS (Address to which payments will be sent.) (See "Payment" clause)

____Payment Address same as Home Office Address ____Payment Address same as Notice Address (check only one) ORDER ADDRESS (Address to which purchase orders will be sent) (See "Purchase Orders and "Contract Documents" clauses)

____Order Address same as Home Office Address ____Order Address same as Notice Address (check only one)

ACKNOWLEDGMENT OF AMENDMENTS

Offerors acknowledges receipt of amendments by indicating amendment number and its date of issue. (See "Amendments to Solicitation" Provision)

AWARD (To be completed by the State)

MAXIMUM CONTRACT PERIOD:

Contents

Part I-The Schedule Cover Page/Page 2/Page 3 See Cover Page, Page 2 and, if applicable, Page 3 Supplies or services and prices/costs General The State Fiscal Accountability Authority Division of Procurement Services (SFAA-DPS), on behalf of Clemson University (Clemson), is soliciting competitive sealed, fixed price proposals to provide an Enterprise Resource Planning System (ERP) to include, Human Resources, Finance, Sourcing and Procurement and all services that are necessary to implement, integrate, support, and make the proposed ERP System available to Clemson via a Software-as-a-Service (SaaS) deployment model in accordance with all requirements herein (including all exhibits and attachments), all applicable laws and regulations, and the Offeror(s)’s responses thereto. Clemson’s desire is to implement modules in the following order: Finance, Human Resources, and all other services needed.

The Contractor shall provide all services and materials to accomplish the requirements as specified herein.

Contract Type The State intends to award a fixed-price contract as specified below.

Historically, the State has awarded a single contract to one Offeror (a “Sole Prime Offeror”) to provide requested solutions and any related services (“Sole Prime Operating Model”). However, to maximize the State’s goal of securing optimal technological solutions while recognizing evolving market approaches combined with the State’s desire for robust competition and contracting flexibility, we will accept either: (i) an Offer from a Sole Prime Offeror under the Sole Prime Operating Model; or (ii) two proposals (a “Dual Prime Offer”) from two (2) Offerors (“Dual Prime Offerors”) that when taken together meet all requirements of this Solicitation and are structured as follows (the “Dual Prime Operating Model”):

1. One “System Provider” will be responsible for providing an ERP System via a Software-as-a-Service deployment model that fully satisfies Clemson’s business and data processing requirements delineated in this Solicitation including all development and production equipment and associated Solution configuration, maintenance, support, help desk, transition, and disengagement services; and

2. One “Systems Integrator” who will be responsible for providing all the services related to configuration, customization, integration, implementation, delivery and testing of the ERP System offered by the System Provider via a Software-as-a-Service deployment model and any other required Third-Party Software as provided in this Solicitation.

If a Dual Prime Offer is submitted under the Dual Prime Operating Model, the System Provider and the Systems Integrator shall each sign a separate Signature Page pursuant to the instructions on the Dual Prime Operating Model Signature Pages. The Dual Prime Offerors shall have a written memorandum of understanding between the parties which should be submitted with the Dual Prime Offerors’ proposals setting forth the business and service delivery agreements between the Dual Prime Offerors and clearly delineating which Offeror will be the System Provider and which Offeror will be the Systems Integrator.

An award to a Sole Prime Offeror will result in one (1) contract between the State and the sole Offeror for all requirements under this Solicitation. An award to Dual Prime Offerors will result in two (2) contracts, one between the State and the System Provider and another between the State and the Systems Integrator.

Pricing (to be completed at time of award) Pricing is described in Attachment B.3 to this contract, which Attachment is incorporated into this Section B by reference.

Total Contract Value The total value of this contract, inclusive of options, will not exceed $ [To be completed at time of award].

Technical Approach and Staffing Award of this contract is in consideration of the Contractor’s technical approach and staff qualifications, as presented in its proposal submitted in response to the RFP. Therefore, so much of the proposal as covers the Contractor’s proposed approach and staffing is attached to the contract as an exhibit. Any inconsistency between the contract and this exhibit shall be resolved by giving precedence to the contract (The Schedule) as provided in the contract clause titled “Contract - Order of Precedence – Integration.”

Description/specifications/scOPE of work Scope of Work (to be completed at time of award) The Scope of Work is attached to this contract as Attachment C.1, which Attachment is incorporated by reference.

Travel Requirements All travel expenses are the sole responsibility of the Offeror.

Place of Performance Contractor performance may be required at the contractor-site or at a South Carolina facility in Clemson, SC or a place mutually agreeable to Clemson and Contractor. A specific facility will be identified at the time of the request based on Clemson and the Contractor’s needs.

Packaging and marking Delivery/Performance Location After award, all deliveries shall be made and all services provided to the following address, unless otherwise specified:

Clemson University G-06 Sikes Hall Clemson, SC 29634 Marking Deliverables The contract number shall be placed on or adjacent to all exterior mailing or shipping labels of deliverable items called for by the contract. Mark deliverables for the appropriate office and person.

Inspection and acceptance Inspection of Services Definition. “Services,” as used in this clause, includes services performed, workmanship, and material furnished or utilized in the performance of services.

The Contractor(s) shall provide and maintain a Service Level Agreement (SLA) and a Test Plan acceptable to Clemson covering the services under this contract. It is expected that these plans will be a part of the overall Enterprise Resource Planning System and completed by the vendor(s) as part of the initial tasks in this project. Complete records of all Quality Assurance (QA) and testing performed by the Contractor shall be maintained and made available to Clemson during contract performance and for three years after completion of all implementation services.

Clemson has the right to inspect and test all services called for by the contract, to the extent practicable at all times and places during the term of the contract. Clemson shall perform inspections and tests in a manner that will not unduly delay the work.

If any of the services do not conform with contract requirements, Clemson may require the Contractor to perform the services again in conformity with contract requirements, at no increase in contract amount. When the defects in services cannot be corrected by reperformance, Clemson may take remedies out outlined in Attachment E.

Final Inspection and Acceptance The Procurement Officer and other personnel she may designate will perform inspection and acceptance of supplies and services to be provided under this contract. Inspection and acceptance will be performed at Clemson University, G-06 Sikes Hall, Clemson, SC 29634.

Deliveries or performance Period of Performance The effective date of the contract(s) is the first day as specified on the final statement of award. In the event of a single contract award, the State anticipates the initial term of the contract will continue from the effective date until five (5) years after Clemson’s acceptance of all implementation and integration services. After the end of the initial term, Clemson will have the option to renew the Contract for up to two (2) additional three-year periods, unless the Contractor receives notice that Clemson elects not to renew the contract at least one hundred twenty (120) days prior to the end of the initial term. Notwithstanding the above or anything else to the contrary herein, the term of this agreement shall expire no later than eleven years after implementation is complete.

The Contractor shall provide the Procurement Officer with prompt written notification of the day the implementation and integration services have been completed and accepted by Clemson.

In the event of a Dual Prime Operating Model the State anticipates two separate contracts as follows:

(a) One contract with the System Provider who will be responsible for providing an ERP System via a Software-as-a-Service deployment model commencing on the effective date and continuing for an initial term of five (5) years after Clemson’s acceptance of all implementation and integration services. After the end of the initial term, Clemson will have the option to renew the Contract for up to two (2) additional three-year periods unless the Contractor receives notice that Clemson elects not to renew the contract at least one hundred twenty (120) days prior to the end of the initial term. Notwithstanding the above or anything else to the contrary herein, the term of this agreement shall expire no later than eleven years after implementation is complete. The Contractor shall provide the Procurement Officer with prompt written notification of the day the implementation and integration services have been completed and accepted by Clemson.

(b) A second contract with the System Integrator who will be responsible for providing all of the services related to customizing, configuring, integrating, implementing, delivering, and testing the ERP System offered by the System Provider via a Software-as-a-Service deployment model and any other required Third-Party Software as provided in this Solicitation with a term mutually agreed by the parties.

Kick-Off Conference A kick-off award conference will be scheduled within 10 business days after the date of contract award. Specific details and agenda will be coordinated by Clemson’s Procurement Director. The conference will be held at a location specified by Clemson.

At a minimum, the meeting is to initiate the communication process between the Clemson and the Contractor(s) by introducing key participants and explaining their roles. The meeting will be coordinated by Clemson’s Procurement Director and include Clemson’s IT Procurement Officer, and key program/project participants and the Contractor’s Point of Contract/Project Manager and key personnel.

Implementation Deliverables Enterprise Resource Planning System Implementation Plan Deliverables for Pre-Implementation Services and Implementation Services are described in Attachment C.1 – Scope of Work, under Section 1.2 Scope of Required Services.

Regular Progress Reports The Contractor shall submit to Clemson regular progress reports starting the first month after the date of contract award. Notwithstanding any reporting requirements in the Scope of Work, the following information is the minimum to be provided in the report.

Generally, the Contractor shall submit a report advising of the work (including services and deliverables) completed during the reporting period and the work forecast for the following reporting period. The report shall also include a clear description of any problems (actual and anticipated) that may lead to delays during the next reporting period and/or any subsequent reporting period(s). The report shall include any additional information--including findings and recommendations -- that may assist the State in evaluating progress under this contract. The report is due by the 5th business day of the succeeding month and shall be submitted to Clemson’s Project Director.

Final Report Within 5 business days after completion of all implementation services and successful execution of all acceptance test and Clemson’s acceptance and approval of such services and the tests, the Contractor shall submit, to Clemson, a summary report of the work performed under the contract including a listing of services completed and/or deliverables delivered. Submission and acceptance of this final report is required before final approval of the implementation services by Clemson will be provided.

Acceptance The Contractor shall submit deliverables to Clemson’s Project Director for inspection, review, and acceptance. Final acceptance of individual deliverables under the contract will occur upon Clemson’s Project Director signature.

Clemson Comments and/or Approvals Clemson will provide comments, items for correction and/or approvals on deliverables as detailed in the Scope of Work.

Key Personnel The Contractor shall assign to this contract the Key Personnel as stated below:

The Contractor will provide the Key Personnel designated in its proposal. The Key Personnel for the implementation services may be different than the Key Personnel after Clemson has accepted the implementation services and moved into live production processing. No diversion will be made by the Contractor without the written consent of the Clemson.

The Contractor will provide Clemson with immediate notice of the termination or transfer of any Key Personnel, the reason(s) for the termination or transfer, and an action plan for replacing the terminated or transferred employee. Contractor will promptly remove and replace any employee as may be reasonably requested by Clemson.

Prior to providing a replacement for any Key Personnel that leaves the project for any reason, Contractor will obtain the State’s written approval of the replacement, which may be withheld in the State’s sole discretion. Contractor will provide Clemson with all reasonably requested information regarding such replacement to allow for Clemson to determine if it approves of the replacement.

Contractor will: (i) ensure that any replacement candidate proposed by Contractor has qualifications and experiences of substantial similarity to the qualifications and experiences of the individual being replaced and such replacement will not delay the Project; and (ii) use reasonable efforts to ensure that such replacement has served on the Project in another role and that replacement candidate had not been previously removed due to Clemson’s request. The contract will be modified to reflect any changes to the Key Personnel.

Agency Business Hours Clemson’s business hours are typically 8:00 AM to 4:30 PM Eastern time, Monday – Friday, except for recognized holidays – see here for 2022 University holiday calendar - https://www.clemson.edu/human-resources/benefits/holiday.html. The Contractor shall coordinate work hours at government facilities with the Clemson Project Director. The Contractor shall not perform work at government facilities on university holidays or other non-business days without prior approval of the Clemson Project Director.

In coordination with the Clemson Project Director, work plan schedules should take into consideration Clemson’s business hours in regard to scheduling and performance of work by Clemson and by the Contractor when working at the agency facilities.

Notice Regarding Late Delivery In the event the Contractor anticipates that it will not be able to meet any delivery and/or performance requirements, it shall immediately notify the Clemson’s Project Director orally and in writing giving pertinent rationale and proposed corrective action(s).

Contract administration data Procurement Officer’s Authority All authority regarding this procurement is vested solely with the responsible Procurement Officer. Unless specifically delegated in writing, the Procurement Officer is the only government official authorized to bind the government with regard to this procurement or the resulting contract. [02-2A007-1] Invoicing Instructions Clemson shall pay the Contractor, upon the submission of proper invoices or vouchers, the prices stipulated in this contract for services rendered and accepted, less any deductions or holdbacks provided in this contract. Payments will be made on the following schedule (to be completed at the time of award).

Special contract requirements See Attachment H.1 – Disengagement Services for more details.

Part II-Contract Clauses

0. Mandatory clauses - state A.

B.

C.

D.

E.

F.

G.

H.

I.

I.1.1. Definitions (MODIFIED) Except as modified herein, terms shall have the meanings ascribed to them in Section 11-35-410.

AMENDMENT means a document issued to supplement the original solicitation document.

APPLICABLE LAWS means collectively any and all laws, codes, regulations, rules, ordinances, guidelines, tariffs or judicial and administrative orders now in effect or hereinafter enacted or adopted, as amended from time to time, in any jurisdiction: (a) applicable to the Solicitation and Contract(s) and use of the System and Services by Clemson and its customers and personnel; (b) applicable to Government Information; (c) identified in the clause entitled “Information Use and Disclosure – Standards”, and (d) applicable to unfair, deceptive, or abusive practices.

APPLICATION SOFTWARE OR “APPLICATION” means Software that performs user or business-related data processing functions. Applications Software shall include all such programs or programming required to meet Offeror(s)’s obligations in providing Clemson with the ERP System.

AUTHORITY means the State Fiscal Accountability Authority or its successor in interest.

AUTHORIZED USERS means individuals authorized by Clemson to use the System, including but not limited to, individuals employed by, or associated with, Clemson and any current and future affiliates. Users may include, for example, employees, consultants, contractors, and agents of Clemson.

BUSINESS means any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture, or any other legal entity. [S.C. Code § 11-35-310(3)] CHANGE ORDER means any written alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity, or other provisions of any contract accomplished by mutual agreement of the parties to the contract. [S.C. Code § 11-35-310(4)] CLARIFICATION means any communication in which the procurement officer requests or accepts information that clarifies any information in a proposal. Clarification does not include the request for or acceptance of any change to the terms of a contractual offer.

CLEARING means removal of data from an information system, its storage devices, and other peripheral devices with storage capacity, in such a way that the data may not be reconstructed using common system capabilities (i.e., through the keyboard); however, the data may be reconstructed using laboratory methods.

CLEMSON means the Using Governmental Unit identified on the Cover Page.

COMMERCIAL SUPPLIER AGREEMENTS means terms and conditions customarily offered to the public by vendors of supplies or services that meets the definition of “commercial product” set forth in S.C. Code Ann. § 11-35-1410 and intended to create a binding legal obligation on the end user. Commercial supplier agreements are particularly common in information technology acquisitions, including acquisitions of commercial computer software and commercial technical data, but they may apply to any product or service. The term applies (a) Regardless of the format or style of the document. For example, a commercial supplier agreement may be styled as standard terms of sale or lease, Terms of Service (TOS), End User License Agreement (EULA), or another similar legal instrument or agreement, and may be presented as part of a proposal or quotation responding to a solicitation for a contract or order; (b) Regardless of the media or delivery mechanism used. For example, a commercial supplier agreement may be presented as one or more paper documents or may appear on a computer or other electronic device screen during a purchase, software installation, other product delivery, registration for a service, or another transaction.

COMMON VULNERABILITIES means those described in (i) The Open Web Application Security Project’s (OWASP) “Top Ten Project” – see http://www.owasp.org, (ii) The CWE/SANS Top 25 Programming Errors- see http://cwe.mitre.org/top25/ or http://www.sans.org/top25-programming-errors/, or (iii) other generally recognized and comparable industry practices or standards.

COMPETITIVE RANGE means the Offeror or group of Offerors selected for negotiation.

COMPROMISE means disclosure of information to unauthorized persons, or a violation of any applicable security policy in which unauthorized intentional or unintentional disclosure, use, theft, modification, damage, corruption, destruction, or loss of any Government Information may have occurred. Without limitation, the term “compromise” includes copying the data through covert network channels, or copying the data to unauthorized media, or disclosure of information in violation of any obligation imposed by this Contract.

CONTRACT means the agreement between the State and the Contractor resulting from this solicitation.

CONTRACT MODIFICATION means a written order signed by the Procurement Officer directing the Offeror to make changes which the clause of the contract titled “Changes,” authorizes the Procurement Officer to order without the consent of the Offeror. [S.C. Code § 11-35-310(9)] CONTRACTOR means the Offeror receiving an award as a result of this solicitation.

COVER PAGE means the top page of the original solicitation on which the solicitation is identified by number. Offerors are cautioned that Amendments may modify information provided on the Cover Page.

DATA means a subset of information in an electronic format that allows it to be processed by computers and retrieved or transmitted.

DEFICIENCY means any term of an offer that does not conform to a material requirement of a solicitation. A material requirement is one that affects the price, quantity, quality, delivery, or other performance obligations of the contract.

DERIVATIVE WORKS means any materials or computer programs based upon existing Software, including translations, reproductions, abridgements, condensations, or any other form in which the Software may be recast, transformed, adapted, revised, or modified.

DUAL PRIME CONTRACTOR(S) means the Dual Prime Offeror(s) receiving an award as a result of this solicitation.

DUAL PRIME OPERATING MODEL(S) means one contract award to a Prime Contractor responsible for Systems Integration, and a separate contract award to a Prime Contractor responsible as the Systems Provider EQUIPMENT means all networks, communications and related computing machines and hardware and upgrades procured, provided, operated, supported, or used by Offeror(s) in connection with Offeror(s) providing Clemson with the ERP System via a SaaS deployment model. Unless otherwise agreed, financial responsibility for the costs, fees and expenses associated with the Equipment, Systems Software and related upgrades shall be Offeror(s) responsibility.

ERP means Enterprise Resource Planning GOVERNMENTAL BODY means a state government department, commission, council, board, bureau, committee, institution, college, university, technical school, agency, government corporation, or other establishment or official of the executive or judicial branch. Governmental body excludes the General Assembly or its respective branches or its committees, Legislative Council, the Legislative Services Agency, and all local political subdivisions such as counties, municipalities, school districts, or public service or special purpose districts or any entity created by act of the General Assembly for the purpose of erecting monuments or memorials or commissioning art that is being procured exclusively by private funds.

GOVERNMENT INFORMATION means information (i) provided to Offeror by, or generated by Offeror for, the using governmental unit, or (ii) acquired or accessed by Offeror as a result of performing the Work. Without limiting the foregoing, government information includes any information that Offeror acquires or accesses as part of this engagement, which includes, without limitation, any metadata or location data. Government information excludes unrestricted information.

INFORMATION means any communication or representation of knowledge such as facts statistics, or opinions, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual.

INFORMATION SYSTEM means a discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information.

INTELLECTUAL PROPERTY RIGHTS means all current and future worldwide rights of the following types: patents and other patent rights, utility models, copyrights, mask work rights, trade secrets, and all other intellectual property rights and the related documentation or other tangible expression thereof.

INTERFACES means the technology used to communicate, integrate, and/or provide interoperability between applications.

INTRUSION means an unauthorized act of bypassing the security mechanisms of a system.

IN WRITING, WRITING, or WRITTEN means any worded or numbered expression that can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.

LOSSES means any and all claims, losses, liabilities, damages, and expenses (including, without limitation, incidental costs and expenses, reasonable attorneys’ fees, reasonable cost of investigation and litigation, interest, and penalties).

MEDIA means physical devices or writing surfaces including but not limited to magnetic tapes, optical disks, magnetic disks, large scale integration memory chips, and printouts (but not including display media, e.g., a computer monitor, cathode ray tube (CRT) or other (transient) visual output) onto which information is recorded, stored, or printed within an information system.

NEGOTIATIONS means any communication that invites or permits an Offeror to change the terms of its contractual offer in any way. Negotiation does not include communications involving (i) information that is necessary to understand an offer, but that does not change any text or graphics in the offer, (ii) information about the Offeror, or (iii) any other information that will not bind the parties upon acceptance of an offer.

NONCONFORMITY means any failure by the System to conform in any material respect with applicable Documentation, including but not limited to any failure of Software programs to produce results conforming with Documentation in any material respect.

NONCONFORMITY CORRECTION means either a modification or addition that, when made or added to Software or the System or any of its components, establishes material conformity of the Software or System or any of its components to the Documentation, or a procedure or routine that, when observed in the regular operation of the Software or System or any component thereof, eliminates the practical adverse effect on Clemson of such Nonconformity or defect.

OFFER means those portions of a proposal that constitute a written promise or set of promises to act or refrain from acting in a specified way, so made as to manifest a commitment to be bound by those promises upon acceptance by the State. Offer does not include mere descriptions of approaches, plans, intentions, opinions, predictions, or estimates; statements that describe the Offeror’s organization or capability; or any other statements that do not make a definite and firm commitment to act or refrain from acting in a specified way.

OFFEROR(S) means (i) a single legal entity submitting an Offer; or (ii) two legal entities severally submitting a Dual Prime Offer.

PAGE TWO means the second page of the original solicitation, which is labeled Page Two.

PROCUREMENT OFFICER means the person, or his successor, identified as such on either the Cover Page, an amendment, or an award notice.

PROPOSAL means the information submitted to the State in response to a request for proposals. The information in a proposal includes (i) the offer, (ii) information explaining the offer, (iii) information about the Offeror, and (iv) any other information that is relevant to source selection decision making.

PROPOSAL MODIFICATION is a change made to a proposal before the solicitation’s closing date and time, or made in response to an amendment, or made to correct a mistake at any time before award.

PROPOSAL REVISION is a change to a proposal made after the solicitation closing date, at the request of or as allowed by the Procurement Officer as the result of negotiations.

PUBLIC INFORMATION means any specific information, regardless of form or format, that the State of South Carolina or Clemson has actively and intentionally disclosed, disseminated, or made available to the public. Information is not public information solely because it may be subject to inspection pursuant to an unfulfilled public records request.

SAFEGUARDING means measures or controls that are prescribed to protect information.

SCEIS means the South Carolina Enterprise Information System SCHEDULED UPTIME means that period of time during which a particular system, application, software, equipment, network or any other part of the services is expected to be available during the measurement window.

SIGNATURE PAGE(S) means the second page (and third page if Dual Prime Offer is submitted) of the original solicitation, which are labeled Page Two and Page Three.

SLA means Service Level Agreement SOFTWARE means all computer data processing programs and programming (and all modifications, replacements, Updates, enhancements, Documentation, materials, and media related thereto), including Applications, development tools and Systems Software.

SOFTWARE as a SERVICE (SaaS) means Offeror(s)’s making the ERP System available to customers via the internet to remotely and securely process data that includes providing: (i) data center facilities to house all Equipment, (ii) all virtualized infrastructure, platform architecture, Systems Software, Applications Software and (iii) all physical and logical security and disaster recovery support. Collectively, (i), (ii) and (iii) comprise major components of the System.

SOLE PRIME OPERATING MODEL means one contract award to a Prime Contractor to provide both System Integration and Systems Provider SOLICITATION means this document, including all its parts, attachments, and any Amendments.

STATE means the State of South Carolina.

STATE FISCAL ACCOUNTABILITY AUTHORITY (SFAA) means the SC State Agency comprised of the Insurance Reserve Fund (IRF) and the Division of Procurement Services (DPS). DPS is representing the State of South Carolina and Clemson by processing this Solicitation on their behalf.

SUBCONTRACTOR means any person other than Clemson that the Offeror(s) contract with to perform or provide any part of the System or Services.

SYSTEM means all Equipment, virtualized infrastructure, platform architecture, Systems Software, Applications Software and all physical and logical security and disaster recovery support required to perform secure ERP data processing meeting the functional requirements delineated in this Solicitation.

SYSTEM INTEGRATOR means the Offeror providing of the services related to the implementation and Software integration and any identified ongoing support of the System.

SYSTEM PROVIDER means the Offeror providing the System via the SaaS deployment model.

SYSTEMS SOFTWARE means all Software that perform tasks basic to the functioning of the Equipment and are required to operate the ERP System or otherwise supports the provision of SaaS by Offeror(s), including virtualized infrastructure, platform architecture, operating systems, systems utilities, database software, data security network protocols and supporting software, compilers, performance monitoring and testing tools, database managers and any other components of the SaaS as well as updates and upgrades to the same. Unless otherwise agreed, financial responsibility for the costs, fees and expenses associated with Systems Software and related updates and upgrades shall be Offeror(s)’s responsibility.

THIRD PARTY means any person or entity other than the Using Governmental Unit, the Offeror, or any subcontractors at any tier.

THIRD PARTY SOFTWARE means Software, licensed directly by the third-party vendor to Clemson solely for use with the System as required and identified by Offeror(s) in this Solicitation and license, maintenance and support fees included in Offeror(s)’ Fees.

UAT means User Acceptance Testing UNRESTRICTED INFORMATION means (1) public information acquired other than through performance of the work, (2) information acquired by Offeror(s) prior to contract formation without obligations of confidentiality, (3) information incidental to contract administration, such as financial, administrative, cost or pricing, or management information, and (4) any ideas, concepts, know-how, methodologies, processes, technologies, techniques which Offeror(s) develop(s) or learn(s) in connection with Offeror(s)’s performance hereunder.

UPDATE(S) means any patch, fix, improvement, enhancement or change to Software that Offeror(s) make(s) commercially available at no additional charge to customers in connection with Software maintenance.

US or WE means the using governmental unit.

USING GOVERNMENTAL UNIT means the unit(s) of government identified as such on the Cover Page.

VOICE means all oral information regardless of transmission protocol.

YOU and YOUR means Offeror.

WORK means all labor, materials, equipment, services, or property of any type, provided or to be provided by the Contractor to fulfill the Contractor's obligations under the Contract.

I.1.2. Assignment, Novation, and Change of Name, Identity, or Structure

(a) Contractor shall not assign this contract, or its rights, obligations, or any other interest arising from this contract, or delegate any of its performance obligations, without the express written consent of the responsible procurement officer. The foregoing restriction does not apply to a transfer that occurs by operation of law (e.g., bankruptcy; corporate reorganizations and consolidations, but not including partial asset sales). Notwithstanding the foregoing, contractor may assign monies receivable under the contract provided that the state shall have no obligation to make payment to an assignee until thirty days after contractor (not the assignee) has provided the responsible procurement officer with (i) proof of the assignment, (ii) the identity (by contract number) of the specific state contract to which the assignment applies, and (iii) the name of the assignee and the exact address or account information to which assigned payments should be made. (b) If contractor amends, modifies, or otherwise changes its name, its identity (including its trade name), or its corporate, partnership or other structure, or its FEIN, contractor shall provide the procurement officer prompt written notice of such change. (c) Any name change, transfer, assignment, or novation is subject to the conditions and approval required by Regulation 19-445.2180, which does not restrict transfers by operation of law.

I.1.3. Choice-of-Law The contract, any dispute, claim, or controversy relating to the contract, and all the rights and obligations of the parties shall, in all respects, be interpreted, construed, enforced and governed by and under the laws of the State of South Carolina, except its choice of law rules. As used in this paragraph, the term “contract” means any transaction or agreement arising out of, relating to, or contemplated by the solicitation.

I.1.4. Commercial Supplier Agreements – Unauthorized Obligations

(a) Except as stated in paragraph (b) of this clause, when any supply or service acquired under this contract is subject to any commercial supplier agreement that includes any language, provision, or clause requiring the State to pay any future fees, penalties, interest, legal costs or to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability, the following shall govern: (1) Any such language, provision, or clause is unenforceable against the State. (2) Neither the State nor any State-authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the State or any State-authorized end user to such clause. (3) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.

(b) Paragraph (a) of this clause does not apply to indemnification or any other payment by the State that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

I.1.5. Commercial Supplier Agreements – Unenforceable Clauses

(a) When any supply or service acquired under this contract is subject to a commercial supplier agreement, the following language shall be deemed incorporated into the commercial supplier agreement. As used herein, “this agreement” means the commercial supplier agreement:

Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the State, the following shall apply:

(1) Applicability. This agreement is a part of a contract between the commercial supplier and the State for the acquisition of the supply or service that necessitates a license or other similar legal instrument (including all contracts, task orders, and delivery orders).

(2) End user. This agreement shall bind the ordering activity as end user but shall not operate to bind a State employee or person acting on behalf of the State in his or her personal capacity.

(3) Law and disputes. This agreement is governed by South Carolina law. (i) Any language purporting to subject the State to the laws of a U.S. state, U.S. territory, district, or municipality, or a foreign nation, is hereby deleted. (ii) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable State law is hereby deleted. (iii) Any language prescribing a different time period for bringing an action than that prescribed by applicable State law in relation to a dispute is hereby deleted.

(4) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the State except as allowed by this contract. If the supplier or licensor believes the ordering activity to be in breach of the agreement, it shall pursue its rights in accordance with Title 11, Chapter 35, Article 17 of the South Carolina Code of Laws while continuing performance.

(5) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorney fees, costs, or interest, may be awarded against the State only when explicitly provided by statute (e.g., Title 15, Chapter 77, Article 5 of the South Carolina Code of Laws).

(6) Updating terms. (A) After award, the contractor may unilaterally revise commercial supplier agreement terms if they are not material. A material change is defined as: (i) terms that change State rights or obligations; (ii) terms that increase State prices; (iii) terms that decrease overall level of service; or (iv) terms that limit any other State right addressed elsewhere in this contract.

(B) For revisions that will materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract by change order.

(C) Any agreement license terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the State, and the State shall not be deemed to have consented to them.

(7) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express consent by the procurement officer.

(8) Indemnification. Any clause of this agreement requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that any legal representation of the State is subject to Title 1, Chapter 7 of the South Carolina Code of Laws.

(9) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user's compliance with this agreement is hereby amended as follows: (A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying State contract or order.

(B) This charge, if disputed by the ordering activity, will be resolved in accordance with the Disputes clause; no payment obligation shall arise on the part of the ordering activity until the conclusion of the dispute process.

(C) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the State.

(10) Non-assignment. This agreement may not be assigned, nor may any rights…