143 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
o Configurable Performance Reviews: UKG’s configurable templates allow administrators to determine the elements and workflow of a performance review for multiple groups:
Customize rating scales
Determine weights, averages, and final performance grade as desired Identify multiple review participants, including peer, manager, and administrative contributors.
o Incident Tracking: Disciplinary actions and incident reports may be tracked within the UKG solution, providing visibility to the full talent history of an employee. o Reporting and Analytics: Robust reporting tools allow HR professionals to gain insights into performance metrics, identify trends, enhancing transparency and accountability and make data-driven decisions.
• UKG Succession Planning supports creation and management of succession planning by tracking high-potential employees and succession plans for individuals and positions or jobs.
• Learning delivers and manages training and development programs. UKG Learning offers online courses, assessments, and certification tracking to enhance employee skills and knowledge. This capability ensures that employees have access to relevant courses, promoting professional development and tracking compliance. Here are some key features:
o Consumable, On-Demand Content: Learning delivers engaging content that employees can access when and where it’s convenient for them. This feature ensures that ongoing learning becomes an integral part of work.
o Tailored Learning Academy: Participating agencies can quickly deploy a training academy with their unique branding and configure the solution to meet specific business needs. Customization is essential for effective learning experiences. o Real-Time Insights: Learning provides real-time insights into employee progress and course completion. This visibility helps participating agencies track learning outcomes and adjust strategies as needed.
• Compensation allows participating agencies to create compensation plans, reward employees thoughtfully, and align individual contributions with business performance. Utilizing configurable merit matrices, UKG Compensation provides visibility into proposed salary changes and/or one-time payouts, allowing leadership to evaluate current and future compensation, compa-ratios, and performance rankings in one editable experience. Workflow of approvals moves these proposed changes through the appropriate channels, culminating in effective dated pay changes that streamline the compensation evaluation process through to payroll.
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Payroll
Using UKG’s automated payroll solution, you can streamline payroll processing to increase productivity, improve payroll accuracy, and gain greater control of your payroll processes – in house and on your schedule.
• Flexible Configuration: UKG solutions provide access to earning and deduction settings, allowing on-the-fly configuration and modification as needed. Multiple pay cycles are supported, allowing each employee group to be processed on the participating agency’s schedule. Off cycle and manual checks may also be issued as needed.
• AI-powered Recommendations: The platform offers advanced tools to enhance payroll management by proactively identifying and resolving errors. Prior payroll comparisons, variance reporting, and other proactive alerts allow payroll administrators to focus on anomalies rather than cross-checking each pay statement.
• Robust Reporting: Reporting is crucial to delivering accurate pay statements. UKG Payroll allows administrators real-time insights into their payroll data at every stage of the process, from initiation to post-payroll reporting. General ledger data is passed to the participating agency’s accounting system in the proper format and is also available for reporting within the UKG solution.
• Payment Services: UKG provides payment services to include check printing and mailing, direct deposit file submission, tax filing and fund disbursement, and wage attachment fund disbursement.
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HR Service Delivery
HR Service Delivery is a comprehensive solution that lets HR Teams execute a sophisticated strategy for people operations and document management.
• People Assist Knowledgebase: This employee self-service portal empowers employees to find answers to HR questions, access agency policies and handbooks, and search or browse through agency created Articles. This reduces the burden on HR for basic inquiries and allows employees to access information on their own schedule. Articles may be limited to a select audience, ensuring that employees only see information relevant to their role.
• People Assist: With People Assist, agencies can deploy an automated case management and knowledge management platform with support for complex business processes, while gaining critical operational insights.
o Knowledgebase: It provides employees with tailored guidance in the form of highly customized knowledge base articles and quick personalized customer service with self- service options. This employee self-service portal empowers employees to find answers to HR questions, access agency policies and handbooks, and search or browse through agency created Articles. This reduces the burden on HR for basic inquiries and allows employees to access information on their own schedule. Articles may be limited to a select audience, ensuring that employees only see information relevant to their role. o Process Automation: Create configurable processes to include assignable tasks, forms, and approvals. Use conditional workflows to automatically route items to appropriate parties, ensuring efficient and complete workforce processes.
• Document Manager: With Document Manager, participating agencies can deploy a sophisticated document management platform where they can manage certifications, licenses, forms, and media files across the workforce while complying with legal requests, government regulations, and data retention guidelines. It enables employees to acknowledge and sign documents while also delivering document management notifications and reminders. o Smart Document Generation: This automates the creation of personalized documents based on templates. Fill in the blanks with relevant data, and the system generates a polished document, saving HR time and ensuring consistency. o eSignature: This allows for electronic signatures on important documents. No more printing, signing, scanning, and emailing – get approvals quickly and securely online.
• HR Compliance Assist: This knowledge portal helps participating agencies navigate the complexities of HR data compliance on a global scale.
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Workforce Management
Workforce Management solution designed to optimize control over labor costs, manage leave, improve scheduling efficiency, and ensure they have the right people in the right place at the right time. Here's a breakdown of how UKG helps with each aspect.
• Time:
o Data Collection (Terminals): UKG offers devices that engage your employees with an easy-to-use interface. Our innovative timekeeping terminals capture time using an embedded card reader with one of many supported badge or card formats. Advanced technology supports touch-free convenience, and optional biometric authentication prevents time theft. The large, responsive capacitive touchscreen offers user-friendly self-service capabilities for employees to submit transfers, view schedules, submit requests and more.
o Timekeeping: UKG’s timekeeping solutions play a crucial role in workforce management by assisting participating agencies take care of your workforce. UKG tools that help you build a culture of belonging, provide guidance and offer autonomy while also fostering organizational adaptability. Our timekeeping solutions help customers:
o Engagement and Self-Service: Our tools enhance engagement and empower employees through self-service features.
o Accurate Time Tracking: Whether for hourly or salaried employees, UKG captures and calculates time with precision.
o Error Reduction: Automated time tracking helps flag exceptions and minimize payroll errors.
o Complex Pay Rules: Configurable parameters accommodate complex work environments, government policies, and union agreements. o Project and Labor Allocation: Allocate time to specific grants, projects, and labor categories. This includes monitor project-specific time spent by employees, helping with cost allocation, grant, and project budgeting.
o Regulatory Compliance: UKG ensures compliance with guidelines such as FLSA by adjusting pay rules, meal-break guidelines, and employee attestations. o Inclusivity: Our solutions meet WCAG 2.0 Level AA accessibility guidelines. o Overtime Management: Set alerts and controls to manage overtime costs and ensure compliance with labor laws.
o Fatigue Management: Real-time analytics allow participating agencies to gain visibility into fatigue patterns and data to help reduce burnout, avoid compliance violations, and increase productivity.
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• Absence Management:
o Absence Management: Absence Management is built to manage leave and attendance efficiently. It automates processes such as automating accrual policies, submitting and approving time off request, requesting a leave of absence, checking FMLA eligibility, and more. This solution helps participating agencies lower costs, maintain productivity, and stay compliant with labor laws and regulations. Here are its key features:
o Accruals Management: Accurately calculate and deduct paid time off based on your paid time off policies. Accrual balances are calculated in real-time and balances can be readily visible to employees using a timekeeping terminal, mobile device, tablet or computer. Takings are automatically calculated and rules such as taking limits are enforced through configurable policies. Leave Liability detail is always current because calculations are based on time worked and deducted as soon as they are entered and saved in the system.
o Attendance Management: Functionality designed to manage incidental absences and align to organizational policies and union collective bargaining agreements. Attendance Management in the UKG solution relieves administrative burdens, provides visibility to all stakeholders, and helps maintain compliance across the agency. Fair and consistent administration of your policies and CBAs ensures all employees are treated equitably.
Frontline supervisors receive notifications when employees have been excessively tardy, leaving early or developed patterns of absenteeism. Additionally, employees are recognized and actions taken to reward perfect attendance in accordance with your policies. Automation using the UKG solution removes discretion and subjectivity. o Leave Management: Assists customers required to meet compliance regulations associated with the administration of Federal, State and local policies running concurrently or consecutively with organizational programs. Ensure compliance by checking eligibility based on leave reasons and types, generating appropriate paperwork, and notifications to follow-up on documents that may be past due. Tracking of intermittent leave takings and notifications of excessive takings are automated for HR’s visibility and controls regarding excessive frequency and duration of leave. Accurate leave management ensures time is taken according to policies and employee rights are respected.
• Scheduling:
o Scheduling: UKG Scheduling provides participating agencies with efficient tools to manage employee schedules, optimize workforce allocation, and streamline staffing processes. Whether it’s creating shifts, handling shift swaps, or ensuring proper coverage, UKG Scheduling helps participating agencies maintain productivity and balance employee well-being. Here are some key features:
o Basic Scheduling: Create simple schedules for teams with predictable work patterns.
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o Scheduler: Build more complex schedules with features like skill-based scheduling, availability management, shift swapping, and conflict resolution. o Advanced Scheduling: Leverage AI and machine learning for optimized scheduling based on forecasts, historical data, and employee preferences. o Healthcare Scheduling: Manage complex scheduling needs specific to healthcare staffing, including on-call scheduling, skills-based matching, and shift swaps. o Public Safety Scheduling: Use the UKG rules-based solution assists in creating employee schedules that align qualifications, certifications, and availability with staffing demands while adhering to agency policies, labor agreements, and HR rules. Optimize the scheduling, communications, and deployment of public safety personnel and other critical resources. Features and benefits include:
Accurate roster and personnel scheduling: The UKG solution empowers participating agencies to prebuild schedules and rosters. Track employee certifications and qualifications. Automatically relay scheduling communications. You can also support different business and union rules for various departments, ensuring staffing decisions are always validated against rules.
o Overtime Management: Objective, rules-based assignment of overtime. Overtime positions are automatically assigned based on rules you configure. Employees are listed objectively in entitlement order, and all employee overtime activity is tracked for auditing purposes.
o Integrated communication: Scheduling and communication functionality is integrated in the UKG solution, thus eliminating manual phone calls and expediting scheduling. The right employees are contacted in the right order, and all communications are automatically tracked.
o Improved productivity: Automate position, shift and vacation bidding. Free supervisors and administrative personnel by ensuring fair and accurate auctions. Configurable queue bids or preference bids ensure you conform to applicable department policies and union rules.
o Improved emergency response: Identify and contact certified, qualified and available employees by phone, text and email for quick scheduling and deployment. Vacant positions are automatically filled. The UKG solution also tracks hours related to emergency response and prepopulates the built-in FEMA report for faster completion, submission and reimbursement.
• Activities:
o UKG Pro Workforce Management Activities is a powerful solution that addresses the challenges of tracking labor against activities. With a focus on people in everything it does, UKG’s Workforce Management Activities for participating agencies to gain real-
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time visibility into organizational data to power more intelligent decision making, optimize efficiency, increase employee productivity, and ultimately improve operational performance. Here’s how it benefits participating agencies:
Key Benefits for Managers:
Identify and deploy your most productive performers
Gain real-time visibility into items that are a work in progress Streamline operations by identifying and removing bottlenecks Quickly reallocate and optimize critical labor resources to meet production deadlines
Assess critical KPIs such as productivity, efficiency, and direct vs. indirect time
Simplify system interaction with the logical guided workflow for your people with pre-built templates
Develop accurate labor standards by understanding variances between actual and standard performance
Automate reconciliation of labor hours to payroll
Key Features of UKG Activities:
Stay in sync with external Enterprise Resource Planning (ERP) systems through bi-directional interface capabilities providing seamless communication and preserving data integrity. Improved accuracy by introducing logic to show only necessary fields with Smart Forms Robust API integration powered by Boomi with easier access to API set expansions
Accurate activity selection with new business structure framework Activity data directly integrated into employee timecard Activity exceptions highlight relevant missing data such as orphan, idle, or missing result
3rd party integration with ERP systems which only sends and receives what is relevant or changed
Enables employees to view and track relevant, tailored information to their specific role and location on the device of their choice Visibility into allocated versus actual hours
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• Forecasting:
o Forecasting informs effective scheduling by making accurate and timely predictions. Its self-tuning and patented Machine Learning (ML) algorithm automatically learns from trends and data unique to each participating agencies. With unprecedented forecast accuracy, it identifies validated patterns, creates best-fit schedules, and optimizes workforce planning. Here are some key features:
o Demand Forecasting: Predict future staffing needs based on historical data, sales trends, and upcoming events.
o Labor Cost Forecasting: Estimate future labor costs based on projected staffing needs and labor rates.
• Strategic Workforce Planning:
o Strategic Workforce Planning helps participating agencies predict, analyze, and address gaps between their current frontline workforce and future human capital needs. It accurately calculates long-term workforce requirements, facilitates effective decision- making, and promotes participating agencies alignment and agility. Here are some key features:
o Skills Gap Analysis: Identify gaps between current employee skills and future business needs.
o Workforce Modeling: Simulate different workforce scenarios to make informed decisions about staffing levels and strategies.
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Workforce Strategy Solutions
These strategic solutions go beyond just core HR, Payroll and Workforce Management functionalities and delve into creating a positive work environment while leveraging data for better decision-making.
Here's how each element contributes:
• Great Place to Work:
o Hub: This is a data-driven platform that analyzes your HR data and employee sentiment surveys (potentially including the annual Great Place to Work Trust Index survey). It provides insights, recommendations, and best practices to help you build a culture of trust, belonging, and high performance.
o Best Practices & Benchmarks: leverages the vast amount of data from Great Place to Work to provide industry-specific benchmarks and best practices. This allows participating agencies to compare their agency's culture to similar agencies and identify areas for improvement.
• HR and Payroll Resource Library:
o UKG customers have access to the HR and Payroll Resource Library, a searchable database containing legislative updates, easy to understand breakdowns of labor standards, and hundreds of benchmarks, checklists, forms, and sample policies. This database is updated daily and provides key compliance information to help minimize risk and reduce administrative task time around employment policy.
• Employee Voice:
o Employee Voice is a survey and analysis tool that utilizes Natural Language Processing to streamline the collection and analysis of employee feedback. Surveys may be fully anonymous or confidential, giving employees peace of mind as they respond to surveys that touch every stage of the employee life cycle: 30-, 60-, or 90-day check-ins, engagement, pulse, onboarding and exit surveys, and more. Results may be processed in seconds, allowing participating agencies to be agile in collecting and responding to priority issues affecting their human capital. Here are some key features:
o Multilingual Support: It can handle over 130 languages and provides automated translation of responses.
o Emotion Interpretation: Using Natural Language Processing, Employee Voice interprets more than 15 emotions and identifies 70 themes and topics. o Content and Templates: In addition to in-house content, it includes 30 survey templates, a vast question library, and industry benchmarks developed by Mercer.
These benchmarks cover various sectors, including High Tech, Manufacturing, Financial Services, Energy, Retail, Life Sciences, Health Care, Consulting & Professional Services, Government & Public Administration, Education & Research, Hospitality,
152 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
Telecommunications & Wireless & Broadband, Real Estate & Rental & Leasing, Consumer Products, and Transportation.
• Analytics:
o Provides robust analytics tools to analyze and interpret your HR, Payroll and Workforce Management data. This can include data on employee engagement, performance, turnover, labor, and more. You can use these insights to identify trends, track progress toward goals, and make data-driven decisions.
• Talk:
o This communication and collaboration tools facilitate open communication between employees and managers. This can help foster a sense of belonging and empower employees to share their ideas and concerns. Talk allows users to post announcements, take polls, promote events and track anticipated attendance, engage in group conversations, and allow one-on-one chats. Talk uses translation features to enable communication between users who may prefer different languages.
• Bryte AI:
o Bryte AI is an artificial intelligence engine that uses machine learning to analyze data and provide personalized recommendations. Bryte is a generative AI-powered sidekick that makes the hard things easy, helps you and your people feel more connected, and shines a light on insights that transform the way you make decisions. o AI Assisted Search: Discover meaningful insights as Bryte AI delivers answers to workplace questions instantly.
o Employee Insights: Keep frontline workers connected with insights into teams, schedules, and workplace happenings.
o Great Place to Work Leadership Recommendations: Create actionable steps based on Great Place To Work resources, best practices, guides, articles, and more.
• Employee Engagement:
o Employee Engagement encompasses a variety of tools and resources aimed at boosting employee Satisfaction and commitment. Some examples include:
o Recognition and Rewards Programs: Acknowledging and rewarding employees for their contributions and achievements.
o Learning and Development Opportunities: Providing training, skill-building, and growth opportunities.
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o Employee Wellness Programs: Initiatives that promote physical, mental, and emotional well-being.
o Goal Setting and Performance Management Tools: Tools to set objectives, track progress, and evaluate performance.
• Thought Leadership:
o Offers public sector industry experts and resources, as well as expertise to build a great place to work. This might include articles, webinars, or conferences focused on fostering employee engagement, diversity, and inclusion.
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UKG Attachment 2 – UKG Public Sector Cobranded Collateral FY24
155 UKG Kronos Systems LLC Proposal in Response to Cobb County Human Resource Systems and Related Products and Services, Sealed Proposal # 24-6833 August 8, 2024
Exhibit “A-1”
Modifications to Exhibit “A”
Exhibit “A-1”
Modifications to Exhibit “A”
Exhibit “B” Contractor’s Bid/Proposal contained certain exceptions to the requirements of Exhibit “A” Owner’s Request for Proposal. Some of the exceptions are accepted and others are not. Language that is struck through is not accepted. The remainder is accepted with the additional language that is underlined:
General
All references to “subcontractors” throughout the Contract will be deemed to be references to those third parties specifically and exclusively engaged for the provision of professional, implementation or training services pursuant to this Contract, and “subcontract” means a written agreement between UKG and such subcontractor to provide such services. For the avoidance of doubt, UKG’s use of third parties to supply software, infrastructure or other services to run its subscription services in general, and not solely for providing services under this Contract is not a subcontracting arrangement.
Section VII. Patent Indemnity
Please refer to UKG EULA provided as part of UKG’s response for patent and intellectual property infringement indemnification.
Section IX. Insurance
Please see redlines and comments to Cobb County’s Required Terms and Conditions provided as part of UKG’s response. Provisions to be conformed to UKG’s actual insurance coverage.
Section XIII. Contract
Please see redlines and comments to Cobb County’s Required Terms and Conditions provided as part of UKG’s response.
Section XIV. Delivery Failures
UKG takes exception to this requirement and expects that the protections afforded Cobb County and Participating Public Agencies in the Cobb County Required Terms and Conditions and UKG’s EULA will otherwise suffice.
Section XVII. Default
All remedies available to Cobb County and Participating Public Agencies are subject to the limitations of liability set forth in UKG’s EULA.
Section XVIII. Disputes
UKG must retain the right to appeal any decision by the Procurement Services Director.
Sections XXVII. Indemnification and XXVIII. Indemnification/Hold Harmless UKG takes exception to these provisions to the extent they are more broad than the indemnification obligations found in UKG’s EULA.
Section XXIX. Confidentiality
Please see UKG’s affidavit declaring specific information to be exempt from disclosure under Georgia’s Open Records Act.
Section XXXIII. Termination for Convenience
UKG requests 90 days prior written notice should the County wish to terminate the Contract for convenience.
Exhibit “B”
Owner’s Request for Proposal
COBB COUNTY PROCUREMENT SERVICES DEPARTMENT
122 Waddell Street, NE
Marietta, Georgia 30060
(770) 528-8400 /Fax: (770) 528-8428
Email: [email protected]
www.cobbcounty.org/procurement-services
IMPORTANT NOTICE – PLEASE READ CAREFULLY!!
ALL proposals MUST be received at the Cobb County Procurement Services Department.
PROPOSALS MUST BE RECEIVED BEFORE 12:00 (NOON) ON
CLOSING DAY
Any proposal received later than 12:00 (noon) will not be accepted . The County accepts no responsibility for delays in the mail. Proposals are to be mailed or delivered to:
COBB COUNTY PROCUREMENT SERVICES DEPARTMENT
122 WADDELL STREET, NE
MARIETTA, GA 30060
All proposals shall be submitted on the Proposal Form. Any revisions made on the outside of the envelope WILL NOT be considered.
PLEASE CHECK proposal specifications and advertisement for document requirements.
Documents/Forms listed below MUST be submitted when required.
Omission of these documents /forms will cause your bid/proposal to be declared NON-RESPONSIVE.
PROPOSAL SUBMITTAL FORM (REQUIRED)
► Official Signature is required on this form guaranteeing the quotation.
CONTRACTOR AFFIDAVIT and AGREEMENT – Exhibit A (REQUIRED) ► Affidavit MUST be signed, notarized and submitted with any proposal requiring the performance of physical services If the affidavit is not submitted at the time of the proposal, proposal will be determined non-responsive and will be disqualified.
BID BOND (NOT REQUIRED)
A “SEALED PROPOSAL LABEL” has been enclosed to affix to your proposal. This label MUST be affixed to the outside of the envelope or package, even if it is a “NO PROPOSAL” response. Failure to attach the label may result in your proposal being opened in error or not routed to the proper location for consideration. No proposal will be accepted after the date and time specified.
Thank you in advance for your cooperation.
Exhibit “B” Owner’s Request for Proposal #24-6833
PROPOSAL SUBMITTAL FORM
SUBMIT PROPOSAL TO:
Cobb County Procurement Services Department
122 Waddell Street NE
Marietta, GA 30060
SEALED PROPOSAL #: 24-6833
Request for Proposals
Human Resource Information Systems and Related Products and Services Cobb County Procurement Services Department
DELIVERY DEADLINE: August 8, 2024 BEFORE 12:00 P.M. (NOON) EST (NO PROPOSALS WILL BE ACCEPTED AFTER THIS DEADLINE).
Proposal Closing Date: August 8, 2024 @ 2:00 P.M. in the Cobb County Procurement Services Department, 122 Waddell Street NE, Marietta, Georgia, 30060.
BUSINESS NAME AND ADDRESS INFORMATION:
COMPANY NAME:
C O N T A C T N A M E :
COMPANY ADDRESS:
E - M A I L A D D R E S S :
P H O N E N U M B E R : F A X N U M B E R :
NAME AND OFFICIAL TITLE OF OFFICER GUARANTEEING THIS QUOTATION:
________________________________________
PRINT/TYPE NAME TITLE
T E L E P H O N E : F A X :
PROPOSER WILL INDICATE TIME PAYMENT DISCOUNT:
PROPOSER SHALL INDICATE MAXIMUM DELIVERY DATE (UNLESS OTHERWISE SPECIFIED IN PROPOSAL
SPECIFICATIONS)
SIGNATURE OF OFFICER ABOVE:
( S I G N A T U R E )
Proposals received after the date and time indicated will not be considered. Cobb County reserves the right to reject any and all proposals, to waive informalities, to reject portions of the proposal, to waive technicalities and to award contracts in a manner consistent with the county and the laws governing the State of Georgia.
The enclosed (or attached) proposal is in response to Sealed Proposal Number 24-6833; is a firm offer, as defined by section O.C.G.A. (s) 11-2-205 of the code of Georgia (Georgia laws 1962 pages 156-178), by the undersigned proposer. This offer shall remain open for acceptance for a period of 90 calendar days from the proposal opening date, as set forth in this invitation to proposal unless otherwise specified in the proposal documents.
NOTICE TO PROPOSERS - PROPOSAL QUOTES MUST INCLUDE INSIDE DELIVERY CHARGES
SEALED PROPOSAL LABEL
SEALED PROPOSAL ENCLOSED
DELIVER TO:
Cobb County Procurement Services
122 Waddell Street NE
Marietta, GA 30060
________________________________________
SEALED PROPOSAL # 24 - 6833 DATE: August 8, 2024
PROPOSALS MUST BE RECEIVED BEFORE 12:00 P.M. (NOON)
DESCRIPTION: Human Resource Information Systems and Related Products and Services
VENDOR: _____________________________________
LABEL MUST BE ATTACHED TO OUTSIDE OF PROPOSAL
PACKAGE
"STATEMENT OF NO PROPOSAL”
COBB COUNTY PROCUREMENT SERVICES DEPARTMENT
122 WADDELL STREET NE
MARIETTA, GA 30060
TO ALL PROSPECTIVE VENDORS:
Because of the many requests to be placed on our vendors' list, we are continuously updating the list.
While we want to include all bona fide vendors, we do not want to mail proposals to those vendors who may no longer be interested in participating in our Request for Proposals (RFP) process.
If you do not choose to respond to the attached RFP, please fill out the form below indicating if you want to be retained on our current vendor list.
Vendors who do not respond in any way (by either submitting a proposal or by returning this form) over a period of one year may be removed from the current vendor list.
Vendors who do not wish to submit a proposal will often return the entire solicitation packet. This is not necessary, and you can return this completed form to [email protected].
Thank you for your cooperation.
Cobb County Procurement Services Department
______________________________________________________________________________ "STATEMENT OF NO PROPOSAL”
Sealed Proposal # 24-6833
Request for Proposals
Human Resource Information Systems and Related Products and Services Cobb County Procurement Services Department
If you do not wish to respond to the attached Request for Proposals, please complete this form and send to [email protected] or by Fax to 770-528-8428
I do not wish to submit a proposal on this solicitation.
I wish to be retained on the vendor list for this commodity and/or service: Yes_____ No ____
Please PRINT the following:
________________________________
Company Representative
You are invited to list reasons for your decision not to submit a proposal:
__________________________________________________________________
REQUEST FOR PROPOSALS
Sealed Proposal # 24-6833
Human Resource Information Systems and Related Products and Services Cobb County Procurement Services Department
Proposal Closing Date: August 8, 2024
Pre-Proposal Conference: July 10, 2024 @ 2:00 PM (E.S.T.) Virtual (via Cisco Webex)
Meeting Link
Meeting Number (Access Code): 2315 366 8267
Meeting Password: 589mMc8MQYV
Proposals Are Received in the Cobb County Purchasing Department 122 Waddell Street NE
Marietta, GA 30060
Before 12:00 P.M. (Noon) By the Proposal Closing Date
Proposal Will Be Opened in the Cobb County Purchasing Department at 2:00 pm 122 Waddell Street NE
Marietta, GA 30060
VENDORS ARE REQUIRED TO SUBMIT THE ORIGINAL, 1 COPY, AND FIVE (5) IDENTICAL
ELECTRONIC COPIES ON FLASH DRIVE(S) OF PROPOSAL
(UNLESS OTHERWISE SPECIFIED IN PROPOSAL SPECIFICATIONS)
NAME: ________
ADDRESS:
REPRESENTATIVE:
PHONE: FAX:
E-MAIL__________ _____________________________________________________________
NOTE: The Cobb County Purchasing Department will not be responsible for the accuracy or completeness of the content of any Cobb County Invitation to Bid or Request for Proposals or subsequent addenda thereto received from a source other than the Cobb County Purchasing Department.
https://cobbcounty.webex.com/cobbcounty/j.php?MTID=m85412ac136835cfb989130e94d0a309f
1 COMPETITIVE SOLICITATION
BY COBB COUNTY, GA
FOR
HUMAN RESOURCE INFORMATION SYSTEMS
AND RELATED PRODUCTS AND SERVICES
ON BEHALF OF ITSELF AND OTHER GOVERNMENT AGENCIES
AND MADE AVAILABLE THROUGH OMNIA PARTNERS
RFP
SEALED PROPOSAL #24-6833
2 OVERVIEW
MASTER AGREEMENT
Cobb County, GA (herein “Lead Public Agency”) on behalf of itself and all states, local governments, school districts, and higher education institutions in the United States of America, and other government agencies and nonprofit organizations (herein “Participating Public Agencies”) is soliciting proposals from qualified suppliers to enter into a Master Agreement (the form for which is attached and incorporated herein) for a complete line of Human Resource Information Systems and Related Products and Services (herein “Products and Services”). Each Supplier awarded an item under this solicitation may offer their complete product and service offering/balance of line for Products and Services. Pricing for complete product and service offering will be determined by a percentage discount off the Supplier’s retail price list. The pricing percentage discount offered must be entered in a Complete Product and Service Offering section in the Supplier’s response to the Pricing section of the Proposal Evaluation Criteria Requirements. Although the below may reflect the needs and requirements of Cobb County, GA, OMNIA Partners Participating Public Agencies may have different requirements.
OBJECTIVES
A. Provide a comprehensive competitively solicited Master Agreement offering Products and Services to Participating Public Agencies;
B. Establish the Master Agreement as a Supplier’s primary offering to Participating Public Agencies;
C. Achieve cost savings for Suppliers and Participating Public Agencies through a single competitive solicitation process that eliminates the need for multiple bids or proposals;
D. Combine the volumes of Participating Public Agencies to achieve cost effective pricing;
E. Reduce the administrative and overhead costs of Suppliers and Participating Public Agencies through state-of-the-art ordering and delivery systems;
F. Provide Participating Public Agencies with environmentally responsible products and services.
GENERAL DEFINITION OF PRODUCTS AND/OR SERVICES
Qualified suppliers are expected to propose the broadest possible selection of HUMAN RESOURCE INFORMATION SYSTEMS AND RELATED PRODUCTS AND SERVICES they offer. Enterprise Resource Planning (ERP) Systems which have a Human Capital Management (HCM) or Human Resource Information System (HRIS) component will not be considered for this Request for Proposals (RFP). The intent of this proposal is to contract for a standalone Human Resource Information System or Human Capital Management System solution and to provide Participating Public Agencies with a full range of solutions to meet their needs. Therefore, the proposer shall have demonstrated experience in providing the products and services as defined in this RFP, including but not limited to, a Human Resource Information System that is able to perform most of the following functions:
• Employee Information Management: Maintain a database of employee information, including personal details, contact information, job history, qualifications, performance evaluation, and training records.
• Recruitment and Applicant Tracking: Manage the recruitment process, including job postings, applicant tracking, resume parsing, candidate evaluation, and communication with candidates.
• Onboarding and Offboarding: Facilitate the onboarding process for new hires, including document management, orientation schedules, training assignments, and integration into the
3 organization. Also, manage the offboarding task such as exit interviews, clearance procedures and exit documentation.
• Attendance and Leave Management: Track employee attendance, work hours, overtime, leaves (vacation, sick leave, etc.) and manage leave requests, approvals and balances. • Payroll and Benefits Administration: Calculate and process employee salaries, bonuses, deductions, taxes, and benefits. Generate payroll reports, pay slips, and manage benefits enrollment and administration.
• Performance Management: Set goals, conduct performance appraisals, provide feedback, track progress, identify training needs, and manage performance improvement plans. • Training and Development: Plan, schedule, and track employee training programs, certifications, workshops, and other development activities. Maintain training records and evaluate training effectiveness.
• Compliance and Legal Requirements: Ensure compliance with labor laws, regulations, and agency policies. Manage employee contracts, agreements, disciplinary actions, and legal documentations.
• Employee Self-Service: Provide employees with self-service portals to update personal information, view pay stubs, apply for leaves, access training materials, and communicate with HR.
• Analytics and Reporting: Generate HR analytics, reports, dashboards, and insights to monitor key metrics, trends, and performance indicators. Use data for decision-making, planning, and strategic HR initiatives.
• Integration and Security: Integrate with other systems such as Accounting, ERP, Time and Attendance, and ensure data security, privacy and compliance with data protection regulations.
• Mobile Accessibility: Provide mobile-friendly access to HRIS functionalities for remote and on-the-go employees, managers, and HR professionals.
New equipment, products and services may be added throughout the contract term by submitting additions for consideration by the County. If approved, all additions shall be treated as if contained herein.
NATIONAL CONTRACT
Cobb County, GA, as the Principal Procurement Agency, defined in Attachment A, has partnered with OMNIA Partners, Public Sector, Inc., a Delaware corporation (“OMNIA Partners”) to make the resultant contract (also known as the “Master Agreement” in materials distributed by OMNIA Partners) from this solicitation available to other public agencies nationally, including state and local governmental entities, public and private primary, secondary and higher education entities, non-profit entities, and agencies for the public benefit (“Public Agencies”), through OMNIA Partners’ cooperative purchasing program. Cobb County, GA, is acting as the contracting agency for any other Public Agency that elects to utilize the resulting Master Agreement. Use of the Master Agreement by any Public Agency is preceded by their registration with OMNIA Partners (a “Participating Public Agency”) and by using the Master Agreement, any such Participating Public Agency agrees that it is registered with OMNIA Partners, whether pursuant to the terms of a Master Intergovernmental Cooperative Purchasing Agreement, a form of which is attached hereto on Attachment A, or as otherwise agreed to. Attachment A contains additional information about OMNIA Partners and the cooperative purchasing program.
OMNIA Partners is the largest and most experienced purchasing organization for public and private sector procurement. Through the economies of scale created by OMNIA Partners’ public sector subsidiaries and affiliates, our participants have access to competitively solicited and publicly awarded cooperative agreements. For all public sector contracts, the lead agency contracting process continues to be the foundation on which we were established. OMNIA Partners is proud to offer more value and resources to state and local government, higher education, K-12 education and non-profits.
4 OMNIA Partners provides shared services and supply chain optimization to government, education and the private sector. With corporate, pricing and sales commitments from the Supplier, OMNIA Partners provides marketing and administrative support for the Supplier that directly promotes the Supplier’s products and services to Participating Public Agencies through multiple channels, each designed to promote specific products and services to Public Agencies on a national basis. Participating Public Agencies benefit from pricing based on aggregate spend and the convenience of a contract that has already been advertised and publicly competed. The Supplier benefits from a contract that generally allows Participating Public Agencies to directly purchase goods and services without the Supplier’s need to respond to additional competitive solicitations. As such, the Supplier must be able to accommodate a nationwide demand for services and to fulfill obligations as a nationwide Supplier and respond to the OMNIA Partners documents (Attachment A).
Cobb County, GA, anticipates spending approximately $1,500,000.00 over the full potential Master Agreement term for Human Resource Information Software and Related Products and Services. While no minimum volume is guaranteed to the Supplier, the estimated annual volume of Human Resource Information Systems and Related Products and Services purchased under the Master Agreement through OMNIA Partners is approximately $200 million. This projection is based on the current annual volumes among Cobb County, GA, other Participating Public Agencies anticipated to utilize the resulting Master Agreement to be made available to them through OMNIA Partners, and volume growth into other Public Agencies through a coordinated marketing approach between the Supplier and OMNIA Partners.
MULTIPLE AWARDS
Multiple awards may be issued as a result of the soli citation. Multiple Awards will ensure that any ensuing Master Agreements fulfill current and future requirements of the diverse and large number of Participating Public Agencies.
Cobb County, GA reserves the right to award the contract locally and/or nationally in the aggregate, by section, multiple award, primary, secondary, and tertiary, whichever is in the best interest of the County and Participating Public Agencies as a result of this solicitation.
EVALUATION OF PROPOSALS
Proposals will be evaluated by the Lead Public Agency in accordance with, and subject to, the relevant statutes, ordinances, rules and regulations that govern its procurement practices.
ADDITIONAL AGREEMENTS
End User License Agreement(s) or EULA(s), Term of Service “TOS” , or Service Agreements are standard contract documents or terms or conditions governing a Participating Agency’s access to, use of, or deployment of certain s oftware or services awarded v endor supplies hereunder, directly, or indirectly, and that a Participating Agency may be required to execute or agree to in connection with its use of the same.
Participating Agencies may negotiate EULAs or TOSs with the applicable awarded vendor or OEM software provider/publisher and/or service provider even if this solicitation is awarded to a distributor.
SURVIVAL CLAUSE
All applicable End User License Agreement(s) or EULA(s), Terms of Services “TOS”, or Service Agreements that are entered into between Cobb County, GA and Supplier(s), or Participating Agency and Supplier(s), under the terms and conditions of the contract, shall survive expiration or termination of the Contract. All Purchase Orders issued and accepted by Contractor shall survive expiration or termination of the Contract for a period of one year.
5 REQUEST FOR PROPOSAL
TECHNOLOGY PRODUCTS, SERVICES, SOLUTIONS,
AND RELATED PORDUCTS AND SERVICES
SEALED BID #24-6833
1. INTRODUCTION
Cobb County Government is seeking sealed proposals from qualified suppliers for HUMAN RESOURCE INFORMATION SYSTEMS AND RELATED PRODUCTS AND SERVCES on behalf of itself, and all states, local governments, school districts, and higher education institutes in the United States of America, and other governmental agencies and nonprofit organizations. The terms bid and proposals may be used interchangeably but responsive proposals will be evaluated using a Best Value method. Suppliers that are nationally recognized and quali fied are expected to propose a broad selection of Human Resource Information Systems and Related Products and Services that they offer commercially. Suppliers submitting proposals shall dem onstrate that they possess the necessary qualifications.
2. OBJECTIVES
a. Provide a comprehensive competitively solicited Master Agreement offering products and services to Participating Public Agencies.
b. Establish the Master Agreement as a Supplier’s primary offering to Participating Public Agencies.
c. Achieve cost savings for the Suppliers and Participating Publ ic Agencies through a single competitive solicitation process that eliminates the need for multiple bids or proposals. d. Combine the volumes of Participating Public Agenc ies to achieve cost effective pricing. e. Reduce the administrative and overhead costs of Suppliers and Participating Public Agencies through state-of-the-art ordering and delivery systems.
3. CONTRACT TERM
a. The contract shall be for a period of forty-eight months and shall commence on the date of award.
b. The contract may be renewed, at the discretion of Cobb County Government and upon written agreement by the vendor, for t hree (3) additional periods of twelve months each. However, the duration of the contract shall not exceed seven (7) years including the exercise of any options. The anticipated full term of the contract is seven (7) years. The Supplier shall have the right to enter local “service” agreements with Participating Public Agencies accessing the contract through OMNIA Partners, so long as the effective date of such agreement is prior to the expiration of the Contract. All local agreements may have a full potential term (any combination of initial and renewal periods) not to exceed seven (7) years. c. Proposals in response to this RFP shall be valid for a period of one-hundred and eighty (180) days after the proposal due date and time.
Multi-Year Contract Provisions
The successful respondent will be required to enter into a contract containing the provisions as required by Georgia law pertaining to multi-year contracts. The following is a sample of the provision and will be adjusted as to the term or as to the length of the contract.
This contract shall terminate absolutely and without further obligation on the part of Cobb County at the close of the calendar year in which it was executed, and at the close of each succeeding calendar year for which it may be renewed as provided in O.C.G.A. § 36-60- 13. The contract shall automatically renew for each of the remaining calendar years provided for in the contract, unless positive action is taken by Cobb County to terminate such contract, and the nature of such action shall be written notice provided to the vendor within sixty (60) days before the end of the initial year of the contract or each succeeding remaining calendar year.
6 This contract shall terminate immediately and absolutely at such time as appropriated and otherwise unobligated funds are no longer available to satisfy the obligations of Cobb County under this contract.
4. PRICING
Prices shall remain fixed for the first twelve (12) months of the Master Agreement term. Reasonable price changes based on market conditions and price/cost analysis may be made after the initial twelve (12) months. The Contractor shall supply documentation satisfactory to Cobb County, such as:
documented changed to Producers Price Indexes; Consumer Price Indexes; or a manufacturer’s published notification of price change(s). Discounts proposed shall remain throughout the term of the contract and at all renewal options.
Cobb County will evaluate this information to determine if revising the pricing is considered fair and reasonable to the satisfaction of Cobb County. Requests for any such change must be received in writing by the Cobb County Procurement Services Department thirty (30) days prior to the expiration of the original contract term. The County may cancel the contract if the price increase request is not approved.
All price reductions at the manufacturers or distributors’ level shall be reflected in a reduction of the contract price(s) to Cobb County retroactive to the effective date of the price reduction(s).
Special Offers/Promotions
In addition to decreasing prices for the balance of the Contract term due to a change in market conditions, Contractor may conduct sales promotions involving price reductions for a specified lesser period. Contractor may offer Participating Public Agencies competition pricing lower than the not-to- exceed price set forth herein at any time during the Contract term and such lower pricing shall not be applied as a global price reduction under the Contract.
Federal Funding Pricing
Due to products and services potentially being used in response to an emergency or disaster recovery situation in which federal funding may be used, if applicable, provide alternative pricing that does not include cost plus a percentage of cost or pricing based on time and materials; if time and materials is necessary, a ceiling price that the contract exceeds at its own risk will be needed. If products and services are provided in a situation where an agency is eligible for federal funding, Offeror is subject to and must comply with all federal requirements applicable to the funding including, but not limited to, the FEMA Special Conditions section located in the Federal Funds Certifications Exhibit.
5. PROPOSAL CONTENTS
To assist in the evaluation of proposals resulting from this RFP, it is requested that each proposal be written in a concise and forthright manner and the unnecessary marketing statements and materials be avoided. The proposal shall consist of the sections outlined and organized in the manner set forth below, separated, and appropriately titled. Responses for each proposal section and requirement listed below must be clearly stated. Any additional relevant information may be placed in appendices.
5.1 Cover Letter
The proposer shall provide a cover letter describing a brief history of the Proposer and its organization. The letter will list the Principal or Officer of the organization who will be the County’s primary point of contact during clarifica tions or negotiations. This individual must have the authority to clarify and/or negotiate all aspects on the scope of products and services on behalf of the Proposer. An officer authorized to bind the Proposer to the terms and conditions of this RFP must sign the cover letter.
7 5.2 Executive Summary
The Proposer shall provide an Executive Summary that presents in brief, concise terms a summary level description of the contents of the proposal.
5.3 Company Background/Profile
Provide information on company background to include the following:
a. Legal name, address, phone and fax numbers, e-mail, Federal ID#, and website address.
b. Date business was established under current name.
c. Size of company including the total number of employees. d. Type of ownership or legal structure of business
e. Has the company ever failed to complete work for which a contract was issued? If yes, explain the circumstances.
f. Are there any civil or criminal actions pending against the firm or any key personnel related in any way to contracting? If yes, explain in detail. Are there any current unresolved disputes/allegations?
g. Has the firm ever been disqualified from working for any public entity? If yes, explain the circumstances.
h. If a Supplier requires additional agreements to be signed by a Participating Public Agency, include a copy of the proposed agreement(s) as part of Supplier’s proposal.
5.4 Experience
Include a list of the five (5) most relevant or comparable contracts completed by your firm during the past five (5) years with a public entity. For each contract, provide the following information:
a. Scope of services/contract description.
b. Dollar value of contract.
c. Assigned project personnel.
d. The contracting entity’s contact person, current phone number, and current e-mail address as reference information.
5.5 Product Information/Service Capability
Provide detailed information on service capabilities of your off ering. This information shall detail how the Supplier’s solution meets the requirements of this RFP. a. Detail how supplier is currently in compliance with all relevant regulations for the HR software market. Provide documentation of appropriate certifications and licenses, if applicable.
b. Demonstrate how Software is implemented, what training curriculum’s entail, and what the implementation process entails.
c. Provide a list of any third-party suppliers that might be utilized during implementation and any third-party terms and conditions that would apply. d. Provide detailed information on training capabilities for your offering. e. Provide a list of the top software and programs Supplier’s offering can integrate with. f. Provide any multi- factor authentication features, if applicable. g. Provide a list of Distributors, if applicable.
h. Detail the process for software migration and the parties that will be involved. i. Detail the process for software upgrades and the parties that will be involved. j. Detail what technical support is provided for the life of the product and how service issues will be handled.
5.6 Pricing
Suppliers shall provide a detailed breakdown of the price per user/license for the proposed system(s).
a. Provide details of and propose additional discounts for large number of users , minimum user, rebates or additional discounts (if offered). b. Provide costs for migration.
8 c. Provide costs to upgrade software.
d. Provide any training costs.
e. Provide any implementation costs.
f. Provide payment methods and terms.
g. Provide any technical support fees.
h. Indicate if payment will be accepted via credit card. If so, may credit card payment(s) be made online? Also state the Convenience fee, if allowable, per the Visa Operating Regulations.
5.7 Value Add
Provide any value- added services or offerings.
5.8 Financial Statements
Proposers shall submit a recent history of financial solvency and provide the following:
a. Financial Statement: Include the most recent, independently certified financial statement. Financial statements must include a balance sheet and income statement. b. Name and address of firm preparing the attached financial statement including a letter stating the independent audit or review has been performed by the firm. c. State whether the Proposer has ever had a bankruptcy petition filed in its name, voluntarily or involuntarily. If yes, specify all relevant details.
5.9 National Contract
a. Include a detailed response to Attachment A, Exhibit A, OMNIA Partners Response for National Cooperative Contract. Responses shall highlight experience, demonstrate a strong national presence, describe how Supplier will educate its national sales force about the contract, describe how products and services will be distributed nationwide, include a plan for marketing the products and services nationwide, and describe how volume will be tracked and report to OMNIA Partners.
b. The successful Supplier will be required to sign Attachment A, Exhibit B, OMNIA Partners Administration Agreement, Suppliers shall have any reviews required to sign the document prior to submitting a response. Supplier’s response shall include any proposed exceptions to the OMNIA Partners Administration Agreement.
6. EVALUATION CRITERIA
Proposals will be evaluated based on information presented in the proposal package and on an analysis of any other available information. The County may conduct such investigations or interviews as it deems necessary to assist in the evaluation of any proposal submitted and to establish to Cobb County’s satisfaction the qualifications of any Proposer.
Proposal will be evaluated based on the following criteria:
a. Relevant Experience/Performance including References. Experiences with Cobb County and entities that evaluation committee members represent may be taken into consideration when evaluating qualifications and experience.
b. Product Options/ Variety/Availability and Service Capability c. Financial Stability
Financial Stability of the top proposer(s) will be evaluated by the Finance Department in the following areas: Liquidity Ratios (1 point); Financial Leverage Ratios (2 points); Profitability Ratios (1 point); and whether an audited or reviewed Financial Statement is submitted with Propos al (1 point). A maximum of 5 points may be awarded. Proposers who receive a score of 2 points or less will be considered for award.
d. Price
e. Response to the National Program (including detailed response to Attachment A, Requirements for National Cooperative Contract to be Administered by OMNIA Partners, Public Sector)
9 To comprehensively evaluate the proposals received, the County may seek additional information or clarification from one or more of the Suppliers. Exclusive or concurrent negotiations may be conducted with responsible Supplier(s) for the purpose of altering or otherwise changing the conditions, terms, and price of the proposed contract unless prohibited.
Cobb County General Instructions for Proposers, Terms and Conditions
I. Preparation of Proposals
Each proposer shall examine the drawings, specifications, schedule and all instructions. Failure to do so will be at the proposer’s risk, as the proposer will be held accountable for their proposal response.
Unit price for each quotation shall be shown and such price shall include packing unless otherwise specified, along with a total and grand total where applicable. In case of discrepancy between a unit price and extended price, the unit price will be presumed correct.
Each proposer shall furnish all information required by the proposal form or document. Each proposer shall sign the proposal and print or type his or her name on the schedule. The person signing the proposal must initial erasures or other changes. An authorized agent of the company must sign proposals.
Requests for Proposals (RFP) issued by Cobb County are advertised on the Cobb County Internet site (www.cobbcounty.org/procurement-services
), and on the Georgia Procurement Registry, and every
Friday in the Cobb County legal organ, the Marietta Daily Journal.
II. Delivery
Each proposer should state time of proposed delivery of goods or services. Words such as “immediate”, “as soon as possible”, etc., shall not be used. The known earliest date or the minimum number of calendar days required after receipt of order (delivery A.R.O.) shall be stated (if calendar days are used, include Saturday, Sunday and holidays in the number).
III. Explanation to Proposers
Any explanation desired by a proposer regarding the meaning or interpretation of the Request for Proposal, drawings, specifications, etc. must be received in writing by 5:00 PM on July 17, 2024, in order for a reply to reach all proposers before the close of the bid. Any information concerning an RFP will be furnished to all prospective proposers as an addendum to the invitation if such information is necessary or if the lack of such information would be prejudicial to uninformed proposers.
Submit questions in writing to:
Cobb County Procurement Services Department
122 Waddell Street NE
Marietta, GA 30060
Fax: 770-528-8428
Email: [email protected]
The written proposal documents supersede any verbal or written communication between parties.
Addenda are posted on the Procurement Services web site:
www.cobbcounty.org/procurement-
services Receipt of addenda shall be acknowledged in the submitted proposal. It is the proposer’s ultimate responsibility to ensure that they have all applicable addenda prior to bid submittal.
10 IV. Submission of Proposals
Proposals shall be enclosed in a sealed package, addressed to the Cobb County Procurement Services Department with the name and address of the proposer, the date and hour of opening, and the request for proposal number on the face of the package. Telegraphic/faxed proposals will not be considered.
Any addenda shall be enclosed in the sealed envelopes as well. All bids shall be submitted on the Bid Proposal Form. Any revisions made on the outside of the envelope will not be accepted.
Unsigned proposals will not be considered.
Cobb County is exempt from federal excise tax and Georgia sales tax with regards to goods and services purchased directly by Cobb County. Suppliers and contractors are responsible for federal excise tax and sales and use tax, including taxes for materials incorporated in county construction projects. Suppliers and contractors should contact the State of Georgia Sales Tax Division for additional information.
Except as otherwise provided by law, information submitted by a proposer in the proposal process shall be subject to disclosure after proposal award in accordance with the Georgia Open Records Act.
Proprietary information must be identified with the appropriate aff idavit as required by the Georgia Open Records Act. Marking an entire proposal as proprietary will be neither accepted nor honored.
Each Proposer is required to keep the contents of their proposal confidential once it is submitted until the award to the s uccessful Proposer is made. Releasing any information regarding the proposal to third parties or the media prior to the conclusion of the selection process will be immediate grounds for the County to reject the proposal as non-responsive.
V. Withdraw Proposal Due to Error
The proposer shall give notice in writing of his claim of right to withdraw his proposal without penalty due to an error within two (2) business days (48 hours) after the conclusion of the proposal opening.
Proposals may be withdrawn from consideration if the price was substantially lower than the other proposals due solely to a mistake therein, provided the proposal was submitted in good faith, and the mistake was a clerical mistake as opposed to a judgment mistake, and was actually due to an unintentional arithmetic error or an unintentional omission of a quantity of work, labor or material made directly in the compilation of the proposal, which unintentional arithmetic or unintentional omission can be clearly shown by objective evidence drawn from inspection of original work papers, documents and materials used in the preparation of the proposal sought to be withdrawn. The proposer’s original work papers shall be the sole acceptable evidence of error and mistake if proposer elects to withdraw its proposal. If a proposal is withdrawn under the authority of this provision, the lowest remaining responsive proposal shall be deemed to be low proposal. Proposal withdrawal is not automatically granted and will be allowed solely at the discretion of Cobb County.
No proposer who is permitted to withdraw a proposal shall, for compensation, supply any material or labor or perform any subcontract or other work agreement for the person or firm to whom the contract is awarded or otherwise benefit, directly or indirectly, from the performance of the project for which the withdrawn proposal was submitted.
VI. F.O.B. Point
Unless otherwise stated in the request for proposal and any resulting contract, or unless qualified by the proposer, items shall be shipped F.O.B. De stination. The seller shall retain title for the risk of transportation, including the filing for loss or damages. The invoice covering the items is not payable until the items are delivered and the contract of carriage has been completed. Unless the F.O.B. clause states otherwise, the seller assumes transportation and related charges either by payment or allowance.
11 VII. Patent Indemnity
The contractor guarantees to hold the County, its agents, officers or employees harmless from liability of any nature or kind for use of any copyrighted or uncopyrighted composition, secret process, patented or unpatented invention, articles or appliances , or intellectual property furnished or used in the performance of the contract, for which the contractor is not the patentee, assignee or licensee.
VIII. Bid, Payment & Performance Bonds – Not Required
IX. Insurance
A. Requirement: Vendor shall procure and maintain in full force and effect for the duration of this Agreement, insurance protecting against claims for injuries to persons or damages to property which may arise from or in connection with performance of the Work hereunder by the Vendor, its agents, representatives, employees, or subcontractors.
B. Minimum Limits of Insurance: During the term of this Agreement, Contactor shall maintain insurance policies with coverage and limits no less than:
1. Commercial General Liability: $1,000,000 combined single limit per occurrence for comprehensive coverage including bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom, damage for premises/operations, products/completed operations, independent contractors and contractual liability (specifically covering the indemnity), broad-form property damage, and underground, explosion and collapse hazard. This coverage may be achieved by using umbrella policy. The policy or policies must be on “an occurrence” basis (“claims made” coverage is not acceptable).
2. Commercial Automobile Liability (owned, non-owned and hired): $1,000,000 combined single limit per occurrence and for bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom.
3. Workers’ Compensation and Employers Liability: Workers’ Compensation limits as required by the State of Georgia and Employers Liability of $1,000,000 per occurrence or disease.
4. Professional Liability, Technology Errors and Omissions, and Cyber Insurance Coverage:
$2,000,000 per claim and $4,000,000 in the aggregate is required, in the event that Vendor is performing design, engineering, or other professional services.
5. Professional Liability (Errors and Omissions) and Coverage: $2,000,000 per claim and $4,000,000 in the aggregate. Vendor shall maintain Technology Errors and Omissions Insurance, which must include coverage Multimedia Liability, Privacy Liability, Network Security Liability, Breach Costs Coverage (including Notification, Credit Monitoring, Forensics, Public Relations), and Regulatory Fines and Penalties assessed due to a Data (Privacy) Breach. a) Technology Errors and Omissions insurance must cover liabilities, punitive damages, and claim expenses arising from errors, omissions, or negligent acts in rendering or failing to render (1) all services promised, including but not limited to computer or information technology services, (2) products that perform the intended function or serve the intended purpose, and (3) violation of software copyright.
b) Services insured, at a minimum, must include (1) systems analysis, (2) systems programming, (3) data processing, (4) systems integration, (5) outsourcing including outsourcing development and design, (6) systems design, consulting, development and modification, (7) training services relating to computer software or hardware, (8) management, repair, and maintenance of computer products, networks, and systems, (9) marketing, selling, servicing, distributing, installing and maintaining computer hardware or software, (10) data entry, modification, verification, maintenance, storage, retrieval or preparation of data output, and (11) any other services provided by the vendor.
12 c) Vendor shall maintain Privacy, Security, and Technology Insurance. i. Vendor’s policy must include coverage for (1) loss, disclosure, and theft of data in any form; (2) media and content rights infringement and liability (excluding patents and trade secrets), including but not limited to, software copyright infringement; and (3) network security failure, including but not limited to, denial of service attacks and transmission of malicious code.
ii. The insurance coverage must include data breach regulatory fines and penalties, the cost of notifying individuals of a security or data breach, the cost of credit monitoring services, and any other causally-related crisis management expense for up to one (1) year.
iii. The insurance coverage must also contain severability for the insured organization for any intentional act exclusions.
iv. If the coverage is provided on a claims-made basis, then it must be maintained for a period of two (2) years after acceptance of the deliverables and/or services provided in connection with this Agreement.
v. Additionally, such policy must cover consequential or vicarious liabilities (e.g., claims brought against the Vendor or its Affiliated Companies and their respective directors, officers, and employees due to the wrongful acts and failures committed by you) and direct losses (e.g., claims made by the Vendor and its Affiliated Companies and their respective directors, officers, and employees against you for financial loss due to your wrongful acts or failures).
d) Commercial Umbrella Liability Coverage: $2,000,000 in liability coverage per occurrence above the Agreements stated minimum coverage limits for Commercial General Liability, Commercial Automobile, and Professional Liability policies of insurance.
C. Deductibles and Self-Insured Retention: Any deductibles or self-insurance retentions must be declared to and approved by County so that County may ensure the financial solvency of Vendor. At the option of County, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects County, its officers, officials, and employees; or Vendor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Vendor shall pay all deductibles and be liable for all claims, losses and damages for which it self-insures.
D. Other Insurance Provisions: The policies are to contain, or be endorsed to contain, the following provisions:
1. General Liability and Umbrella/Excess Insurance
a) Additional Insured Requirement. Cobb County, its elected and appointed officials, officers, boards, commissions, officers, employees, representatives, servants, volunteers and agents (hereinafter referred to as “Insured Party” or “Insured Parties”) shall be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Vendor; products and completed operations of Vendor, premises owned, leased, or used by Vendor. The coverage shall contain no special limitations on the scope of protection afforded to the Insured Parties. Nothing contained in this section shall be construed to require Vendor to provide liability insurance coverage to the any Insured Party for claims asserted against such Insured Party for its sole negligence.
b) Primary Insurance Requirement. Vendor’s insurance coverage shall be primary and noncontributing insurance as respects to any other insurance or self-insurance available to the Insured Parties. Any insurance or self-insurance maintained by the Insured Parties shall be in excess of Vendor’s insurance and shall not contribute with it.
13 c) Reporting Requirement. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Insured Parties. d) Separate Coverage. Coverage shall state that the Vendor’s insurance shall apply separately to each Insured Party against whom claim is made or suit is brought. e) Defense Costs/Cross Liability. Coverage shall be provided on a “pay on behalf” basis, with defense costs payable in addition to policy limits. There shall be no cross- liability exclusion.
E. Workers’ Compensation and Employers Liability Coverage: Vendor shall have and maintain in full force and effect for the duration of this Agreement, insurance protecting against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work by Vendor, its agents, representatives, employees or subcontractors. The insurer shall agree to waive all rights of subrogation against County and its officers, officials, employees, and volunteers for losses arising from the work performed by Vendor for County.
F. Waiver of Subrogation: The insurers shall agree under each policy of insurance required by this Agreement to waive all rights of subrogation against the Insured Parties for losses arising from work performed by Vendor for County.
G. All Coverages:
1. Notice Requirement. Each insurance policy required by this Agreement shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to County as provided in the Notice Section of this Agreement. County reserves the right to accept alternate notice terms and provisions provided they meet the minimum requirements under Georgia law.
2. Acceptability. The insurance to be maintained by Vendor must be issued by a company licensed or approved by the Insurance Commissioner to transact business in the State of Georgia. Such insurance shall be placed with insurers with a minimum AM Best’s Policyholder’s Rating of “A” or better and with a financial rating of Class VIII or greater or be otherwise acceptable to Cobb County.
3. Failure of Insurers. Vendor shall be responsible for any delay resulting from the failure of any insurer to furnish proof of coverage in the prescribed form.
H. Verification of Coverage: Vendor shall furnish County with certificates of insurance and endorsements to the policies evidencing all coverages required by this Agreement. Additionally, the declarations page for each insurance policy listed on the certificate of insurance shall be submitted to County. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements shall be received and approved by County before any work commences. County reserves the right to require complete, certified copies of all required insurance policies at any time. Vendor shall provide proof that any expiring coverage has been renewed or replaced prior to the expiration of the coverage. Vendor’s failure to comply with this provision shall be considered a material breach of the Agreement.
I. Subcontractors: Vendor shall require all subcontractors to maintain insurance that is industry standard for the scope and risk of the services being provided by that subcontractor.
J. Failure to Comply: Failure to comply with all insurance requirements set forth in this Section and applicable to this agreement will not relieve Vendor from any liability under the agreement will not be construed to conflict with or limit Vendor’s indemnification obligation obligations under the agreement.
Duration: All insurance required by this Section must be maintained during the entire term of the agreement, including any renewal or extension terms, and until all Work has been completed to the satisfaction of County.
14 X. Award
Award will be made to the highest scoring responsive and responsible proposer according to the criteria stated in the proposal documents and only after approval of the County Board of Commissioners.
Award will be made in writing to the successful proposer. The County may make such investigations or obtain such clarifications as it deems necessary to determine the ability of the proposer to perform, and the proposer shall furnish to the County all such information and data for this purpose as the County may request. The County reserv es the right to reject any proposal if the evidence submitted by, or investigations of such proposer fails to satisfy the County that such proposer is properly qualified to carry out the obligations of the contract.
The County reserves the right to reject or accept any or all proposals for any reason and to waive technicalities, informalities and minor irregularities in the proposals received in the County’s sole discretion and best interest. The County reserves the right to make an award as deemed in its best interest which may include awarding a proposal to a single proposer or multiple proposers; or to award the whole proposal, only part of the proposal, or none of the proposal to single or multiple proposers, based on its sole discretion of its best interest.
Time payment discounts will be considered in arriving at net prices and in award of proposal.
It is the intent of Cobb County Government to award all contracts in a manner that promotes fair, equitable treatment of all contractors and sub-contractors without regard to race, color, creed, national origin, gender, age, or disability.
XI. County Furnished Property
The County will furnish no material, labor or facilities unless so provided in the RFP.
XII. Rejection of Proposals
Failure to observe any of the instructions or conditions in this request for proposal may constitute grounds for rejection of proposal.
XIII. Contract
Upon submitting a proposal in response to an RFP containing Cobb County ’s Required Terms and Conditions, it is understood that the proposer has reviewed the documents with the understanding that Cobb County requires that the successful proposer(s) shall enter into a contract that is substantially the same as Cobb County’s Required Terms and Conditions unless modified by agreement of the parties.
If any exceptions are taken to any part of Cobb County’s Required Terms and Conditions , each exception must be stated in detail and submitted as part of the proposal document. If no exceptions are stated, it is assumed that the proposer fully agrees to Cobb County’s Required Terms and Conditions in its entirety. The foregoing should not be interpreted to prohibit either party from proposing additional contract terms and conditions during negotiation of th e final contract, and the County reserves the right to make changes to Cobb County’s Required Terms and Conditions. In no event is a proposer to submit its own standard contract terms and conditions as a response to this RFP.
Each proposal is received wi th the understanding that selection as the successful proposer by the County does not constitute a written contract between the successful proposer and the County, but shall bind the proposer on his part to furnish and deliver the articles quoted at the pr ices stated in accordance with the conditions of said accepted proposal upon execution of a written contract with the County authorized by the County Board of Commissioners and signed by the Chair woman. Once a contract is executed by the proper authorities for each party, the County, on its part, may order from
15 such contractor, and except for cause beyond reasonable control, pay for, at the agreed prices, all articles specified and delivered.
XIV. Delivery Failures
Failure of a contractor to deliver within the time specified or within reasonable time as interpreted by the Procurement Services Director, or failure to make replacements of rejected articles/services when so requested, immediately or as directed by the Procurement Services Director, shall constitute authority for the Procurement Services Director to purchase in the open market or rebid for articles/services of comparable grade to replace the articles/services rejected or not delivered. On all such purchases, the contractor shall reimburse the County within a reasonable time specified by the Procurement Services Director for any expense incurred in excess of contract prices, or the County shall have the right to deduct such an amount from monies owed the defaulting contractor.
Alternatively, the County may penalize the contractor one percent (1%) per day for a period of up to ten (10) days for each day that delivery or replacement is late. Should public necessity demand it, the County reserves the right to use or consume articles/services deli vered which are substandard in quality, subject to an adjustment in price to be determined by the Procurement Services Director.
XV. Non-Collusion
By submission of a proposal, the proposer certifies, under penalty of perjury, that to the best of its knowledge and belief:
(a) The prices in the proposal have been arrived at independently without collusion, consultation, communications, or agreement, for the purpose of restricting competition, as to any matter relating to such prices with any other vendor or with any competitor.
(b) Unless otherwise required by law, the prices which have been quoted in the proposal have not been knowingly disclosed by the proposer prior to opening, directly or indirectly, to any other proposer or to any competitor.
(c) No attempt has been made, or will be made, by the proposer to induce any other person, partnership or corporation to submit or not to submit a proposal for the purpose of restricting competition.
Collusion and fraud in bid preparation shall be reported to the State of Georgia Attorney General and the United States Justice Department.
XVI. Conflict of Interest, Etc.
By submission of a proposal, the proposer certifies, under penalty of perjury, that to the best of its knowledge and belief:
1. No circumstances exist which cause a Conflict of Interest in performing the services required by this RFP, and
2. That no employee of the County, nor any member thereof, not any public agency or official affected by this RFP, has any pecuniary interest in the business of the responding firm or his sub-consultant(s) has any interest that would conflict in any manner or degree with the performance related to this RFP.
The responding firm also warrants that responding firm and its sub-consultant(s) have not employed or retained any company or person other than a bona fide employee working solely for the responding firm or sub-consultant(s) to solicit or secure a contract agreement with Cobb County, as related to this RFP, and that responding firm and its sub-consultant(s) have not paid or agreed to pay any person, company, corporation, individual, or firm other than a bona fide employee working solely for the responding firm or its sub-consultant(s) any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award of this Agreement.
16 For any breach or violation of this provision, the County shall have the right to terminate any related contract or agreement without liability and at its discretion to deduct from the price, or otherwise recover, the full amount of such fee, commission, percentage, gift, payment or consideration.
The successful responding firm shall require each of its sub-consultant(s) to sign a statement certifying to and agreeing to comply with the terms of the subsections above.
XVII. Default
The contract may be terminated by the Procurement Services Director in whole or in part by written notice of default to the contractor upon non-performance or violation of any contract term. An award may be made to the next highest rated responsive and responsible proposer, or articles specified may be purchased on the open market similar to those terminated or the County may issue a new Request for Proposal. In any event, the defaulting contractor (or his surety) shall be liable to the County for costs to the County in excess of the defaulted contract prices; provided, however, that the contractor shall continue the performance of this contract to the extent not terminated under the provisions of this clause. Failure of the contractor to deliver materials or services within the time stipulated on its proposal, unless extended in writing by the Procurement Services Director, shall constitute contract default.
XVIII. Disputes
Except as otherwise provided in the contract documents, any dispute concerning a question of fact arising under the contract which is not disposed of shall be decided after a hearing by the Procurement Services Director who shall reduce his/her decision to writing and mail or otherwise furnish a copy thereof to the contractor. The decision of the Procurement Services Director shall be final and binding.
XIX. Substitutions
Proposers offering and quoting on substitutions or who are deviating from the attached specifications shall list such deviations on a separate sheet to be submitted with their proposal. The absence of such a substitution list shall indicate that the proposer has taken no exception to the specifications contained therein.
XX. Ineligible Proposers
The County may choose not to accept the proposal of one who is in default on the payment of taxes , licenses or other monies owed to the County. Failure to respond three (3) consecutive times for any given commodity may result in removal from the list under that commodity.
XXI. General Information
Sealed proposals, with original signatures, will be accepted by the County Procurement Services Department at the time, place, and date specified. One (1) original, one (1) copy and five (5) flash drives of the proposal must be submitted, complete with a cover letter signed by an official within the organization who has authority over project negotiation.
These proposals must be in accordance with the purposes, conditions, and instructions provided in this RFP. The Cobb County Board of Commissioners assumes no responsibility for proposals received after the submission time, whether due to mail delays or any other reason. Proposals received after the submission time will be filed unopened and considered non-responsive.
As previously stated under IV, unsigned proposals will not be considered.
17 Cobb County reserves the right to retain all proposals submitted, and to use any idea in any proposal regardless of whether that proposal is selected. All work performed by the successful respondent shall be performed in compliance with the Americans with Disabilities Act.
XXII. Uniformity of Proposal
To facilitate comparative analysis and evaluation of proposals it is desired that a uniform format be employed in structuring each proposal. The respondent’s degree of compliance with the requirements of the RFP will be a factor in the subsequent point -based evaluation of the proposal. Proposals with major deviations or omissions may not be considered for detailed study. Proposals will become part of the contract with Cobb County should they be selected under the RFP.
XXIII. Request Additional Information
Inquiries that must be answered in regards to the Proposal procedures or technical matters must be submitted in writing via U.S. Mail or facsimile or email to:
Cobb County Procurement Services
122 Waddell Street NE
Marietta, GA 30060
Fax: (770) 528-8428
Email: Procurement [email protected]
Cobb County will not orally or telephonically address any question or clarification regarding specifications or procedures. Cobb County is not bound by any oral representations, clarifications, or changes made to the written specification by County employees, unless such clarification or change is provided to the respondent in written addendum from Cobb County.
XXIV. Firm Prices
Prices quoted by proposal shall be firm and best prices. Prices quoted must be valid for a minimum of 180 days from the date of bid opening.
XXV. Proposal/Presentation Costs
The cost for developing a proposal will be borne by the respondent. Cobb County is not liable for any costs incurred by the respondent in preparation and/or presentation of proposals in response to this RFP or for travel and other costs related to this RFP.
XXVI. Proposal Format
Presentation of the relevant information is at the discretion of the respondent; however, the proposal must address all items identified in Section Titled, Proposal Requirements. To assist in the evaluation of proposals resulting from the RFP, it is recommended that each proposal be written in a concise and forthright manner and that unnecessary marketing statement and materials be avoided.
XXVII. Indemnification
By submitting a Proposal, the Proposer hereby agrees to indemnify, defend and hold harmless the County, its departments, employees and the Board of Commissioners from and against any and all claims, demands, liabilities, losses, costs or expenses, including attorneys’ fees, due to liability to a third party or parties, for any loss due to bodily injury (including death), personal injury, and property damage, including but not limited to intellectual property claims, arising directly or indirectly from the submission of the Proposal hereunder, but only to the extent such claims are caused by the negligence, recklessness or intentionally wrongful conduct of the Proposer or its agents, employees, associates, subcontractors or others working at the direction of Proposer. This
18 indemnification obligation survives beyond the submission date of the Proposal and the dissolution or, to the extent allowed by law, the bankruptcy of the Proposer.
XXVIII. Indemnification/Hold Harmless
The Contractor covenants and agrees to take and assume all responsibility for the Work rendered in connection with this Agreement. The Contractor shall bear all losses and damages directly or indirectly resulting to it on account of the performance or character of the Work rendered pursuant to this Agreement.
To the fullest extent permitted by law, the Contractor shall defend, indemnify and hold harmless the County and the County's elected and appointed officials, officers, boards, commissions, employees, representatives, consultants, servants, agents and volunteers (individually an “Indemnified Party” and collectively the “Indemnified Parties”) from and against any and all claims, suits, actions, judgments, injuries, damages, losses, expenses, and liability of any kind whatsoever, including but not limited to attorneys' fees and other legal expenses, (“Liabilities”) to the extent caused by or resulting from negligence, recklessness, or intentionally wrongful conduct arising out of the Work, performance of contracted services, or operations by Contractor, any subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor or anyone for whose acts the Contractor or subcontractor may be liable, regardless of whether or not the negligent act or omission is caused in part by a party indemnified hereunder. This indemnity obligation does not include Liabilities caused by or resulting from the sole negligence of an Indemnified Party. Such obligation shall not be construed to negate, abridge or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to the party or person described in this Section XXVII and Section XXVIII.
In any and all claims against an Indemnified Party or Indemnified Parties by an employee of the Contractor, its subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Section XXVII and Section XXVIII shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor, or its subcontractors, under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts.
This obligation to indemnify, defend and hold harmless the Indemnified Party and Indemnified Parties shall survive the expiration or termination of this Agreement provided that the claims are based upon or arise out of acts or omissions that occurred during the performance of this Agreement.
XXIX. Confidentiality
Contractor acknowledges that it may receive confidential information of the County and that it will protect the confidentiality of any such confidential information and will require any of its subcontractors, contractors, and/or staff to likewise protect such confidential information. The Contractor agrees that confidential information it receives or such reports, information, opinions, or conclusions that Contractor creates under this Agreement shall not be made available to, or discussed with, any individual or organization, including the news media, without prior written approval of the County. Contractor shall exercise reasonable precautions to prevent the unauthorized disclosure and use of County information whether specifically deemed confidential or not.
Contractor acknowledges that the County’s disclosure of documentation is governed by Georgia’s Open Records Act, and Contractor further acknowledges that, if Contractor submits records containing trade secret information and if Contractor wishes to keep such records confidential, Contractor must submit and attach to such records an affidavit affirmatively declaring that specific information in the records constitutes trade secrets pursuant to Article 27 of Chapter 1 of Title 10, and the Parties shall follow the requirements of O.C.G.A. § 50-18-72(a)(34) related thereto.
19 XXX. Local Vendor Presence (LVP) Program – Not Applicable
XXXI. Proposal Evaluation
The Evaluation process will address current requirements and consider possible future operation and maintenance needs. Both objective and subjective rationale will be involved in the decision process.
1. Evaluation Responsibility
A selection committee will coordinate the review of all proposals and will submit a recommendation to the County Manager and Board of Commissioners.
2. Presentations
During the evaluation process, the members of the selection committee may requir e that responding firms conduct a presentation. If required, these presentations will be scheduled in advance and limited in time. Location of the presentations will be pre-arranged.
3. Evaluation Criteria
The County will use a specific set of criteria for the qualitative evaluation of competitive proposals. The structure of the evaluation will be to assign points to each response in a number of categories. A non-response to a specific category will result in no points being awarded for that category. Final rankings will be based on a combination of price (where applicable) and qualitative factors.
The evaluation by any Selection Committee will be based on the criteria listed on Page
8. All proposal requirements must be met, or capable of being met by the responding firm or the proposal will be disqualified as non-responsive. It is extremely important that project schedules are met. Only those firms or teams with the necessary resources and a commitment to complete all project work on schedule should submit a Proposal.
XXXII. Multi-Year Contract Provisions
The successful respondent will be required to enter into a contract containing the provisions as required by Georgia law pertaining to multi-year contracts. The following is a sample of the provision and will be adjusted as to the term or as to the length of the contract.
This contract shall terminate absolutely and without further obligation on the part of Cobb County at the close of the calendar year in which it was executed, and at the close of each succeeding calendar year for which it may be renewed as provided in O.C.G.A. § 36-60- 13. The contract shall automatically renew for each of the remaining calendar years provided for in the contract, unless positive action is taken by Cobb County to terminate such contract, and the nature of such action shall be written notice provided to the consulting firm within sixty (60) days before the end of the initial year of the contract or each succeeding remaining calendar year.
This contract shall terminate immediately and absolutely at such time as appropriated and otherwise unobligated funds are no longer available to satisfy the obligations of Cobb County under this contract.
20 XXXIII. Termination for Convenience
The successful Proposer will be required to enter into a contract containing a provision for termination of the contract for the County’s convenience. The following is a sample of the provision.
The County, by written notice, may terminate this contract, in whole or in part, when it is in the County’s interest. If this contract is terminated, the County shall be liable only for goods or services delivered or accepted. The County Notice of Termination may provide the contractor thirty (30) days prior notice before it becomes effective. However, at the County’s sole option a termination of convenience may be effective immediately and may apply to delivery orders (if applicable) or to the contract in whole.
XXXIV. Proposal Requirements
The respondents must demonstrate competence and experience in the area of expertise outlined in this Request for Proposal.
If required, respondents must demonstrate competence and experience in public speaking and graphic presentations for the purpose of conveying project information to large and diverse community groups.
Respondents should also be able to demonstrate the ability to build consensus among public and private interest groups related to this project.
XXXV. Cover Letter/Executive Summary
Respondents shall provide a cover letter o r letter of transmittal to briefly summarize the company’s interest and relevant qualifications for the project. This letter shall not exceed two (2) pages, and shall be signed by an agent of the responding firm who is authorized to negotiate the details of the proposed services.
XXXVI. Project Team
Respondents shall provide an organizational chart for the proposed project team, as well as the relevant background and experience for every proposed team member.
XXXVII. Small and Minority Business Participation
Cobb County Government encourages the participation of all businesses in offering their products and services with the goal of fairly and competitively procuring those products and services at the most reasonable cost. To that end, the County seeks to foster minority and women-owned business, and small business, opportunities in the award and implementation of contracts. The County seeks to build a diverse, inclusive, and prosperous group of suppliers who can effectively compete in business while obtaining quality goods and services in a competitive, efficient and non-discriminatory manner.
XXXVIII. Special Terms and Conditions
Should these General Terms and Conditions be in conflict with any attached Special Terms and Conditions, the Special Terms and Conditions will control.
21 XXXIX. Compliance with Georgia Security and Immigration Compliance Act
PROCEDURES & REQUIREMENTS
(Effective 09-20-2013 - Supersedes All Previous Versions)
BACKGROUND
Pursuant to the “Georgia Security and Immigration Compliance Act,” Cobb County cannot enter into a contract for the physical performance of services unless the contractor registers and participates in the federal work authorization program to verify information of all newly hired employees or subcontractors. Neither may any contractor or subcontractor enter a contract with the county in connection with the physical performance of services unless the contractor and/or subcontractor registers and participates in the federal work authorization program to verify information of all new employees. O.C.G.A. § 13-10-91.
Before any bid for the physical performance of services is considered, the bid must include a signed, notarized affidavit fro m the contractor attesting to the following: (1) the affiant has registered with and is authorized to use the federal work authorization program; (2) the user ID number and date of authorization for the affiant; and (3) the affiant is using and will contin ue to use the federal work authorization program throughout the contract period. O.C.G.A. § 13-10-91 (b) (1). Affidavits shall be maintained for five years from the date of receipt. O.C.G.A. § 13-10-91 (b) (1).
Upon contracting with a new subcontractor, a contractor or subcontractor shall, as a condition of the contract or subcontract, provide Cobb County with notice of the identity of any and all subsequent subcontractors hired or contracted by that contractor or subcontractor within five (5) business days of entering into a contract or agreement for hire with any subcontractor. Such notice shall include an affidavit including the subcontractor’s name, address, user ID number, and date of authorization to use the federal work authorization program. O.C.G.A. § 13-10-91 (b) (3).
Based upon the County’s experience and desire for full compliance, no work may be commenced by any subsequent subcontractor prior to notice being received by the County that the subcontractor (regardless of tier) is in compliance with the law and the attached Procedures & Requirements, including the preparation and submission of the Contractor (or Subcontractor) Affidavit & Agreement AND the Immigration Compliance Certificate PRIOR to the commencement of any work.
DEFINITIONS
Affidavit – a written statement made or taken under oath before an officer of the court or a notary public or other person who duly has been authorized so to act.
Affiant – the person who makes and subscribes to a statement made under oath (affidavit).
Physical Performance of Services – any performance of labor or services for a public employer using a bidding process or by contract wherein the labor or services exceed $2,499.99.
22 PROCEDURES & REQUIREMENTS
1. Bid Documents: Bid documents should contain information regarding the contract language and contractual requirements described below.
2. Responsive Bid Documents: Responsive bid documents MUST INCLUDE a signed, notarized affidavit from the contractor in the form attached as EXHIBIT A (CONTRACTOR AFFIDAVIT & AGREEMENT). If the affidavit is not submitted at the time of the bid, the applicant will be disqualified.
This Affidavit Must Be Signed, Notarized And Submitted With Any Bid Requiring The Performance Of Physical Services. If The Affidavit Is Not Submitted At The Time Of The Bid, The Bid Will Be Determined To Be Non-Responsive And Will Be Disqualified.
3. Contract Language & Contractual Requirements: Affirmative language shall be contained in agreements for the performance of services to cover all statutory and County requirements; such language shall require:
(a) That affidavits in the form attached to these “Procedures & Requirements” be executed from a contractor (and any subcontractors, regardless of tier) and nota rized, showing compliance with the requirements of O.C.G.A. § 13-10-91 and that such be made part of the contract and/or subcontracts;
(b) That the contractor (and any subcontractors, regardless of tier) fully comply with the requirements for completing and submitting the “Immigration Compliance Certification” and that such certification be received by the County prior to the commencement of any work under the contract or subcontract;
(c) That the contractor (or any subcontractor, regardless of tier) notify the County within five (5) business days of entering into a contract or other agreement for hire with any subcontractor(s), regardless of tier;
(d) That the contractor be responsible for obtaining and providing to the Count y the “Subcontractor Affidavit & Agreement” and “Immigration Compliance Certification” attached to and required under these “Procedures & Requirements” from each subcontractor, regardless of tier, employed or retained for work under the contract prior to the commencement of any work under the contract or any subcontract;
(e) That Cobb County, Georgia, reserves the right to dismiss, or require the dismissal of, any contractor or subcontractor for failing to provide the required affidavit or certification and/or for failure to comply with the statutory requirements of O.C.G.A. § 13- 10-91 and/or for providing false or misleading information upon the required affidavit(s) or certification(s);
(f) That any contractor and/or subcontractor retaining any other subcontractor to perform services under the contract provide legal notice to any subcontractor of the requirements of Cobb County for immigration compliance and further provide notice that Cobb County, Georgia, reserves the right to dismiss, or require the dismissal of, any contractor or subcontractor for failing to provide the required affidavit or certification and/or for failure to comply with the statutory requirements of O.C.G.A. § 13- 10-91 and/or for providing false or misleading information upon the req uired affidavit(s) or certification(s);
(g) That failure to comply with any of the requirements and procedures of the County (i.e., failure to timely supply required affidavits or compliance certification documents; failure to utilize federal work authorization procedures; failure to permit or facilitate audits or reviews of records by County or State
23 officials upon request; and/or failure to continue to meet any of the statutory or County obligations during the life of the contract) shall constitute a material breach of the agreement and shall entitle the County to dismiss any general contractor or to require the dismissal of any subcontractor or sub/subcontractor (irrespective of tier) for failing to fully comply with these requirements;
(h) That upon notice of a material breach of these provisions, the contractor (or subcontractor, regardless of tier) shall be entitled to cure the breach within ten (10) days and provide evidence of such cure. Should the breach not be cured, the County shall be entitled to all available remedies, including termination of the contract, the requirement that a subcontractor be dismissed from performing work under the contract, and any and all damages permissible by law.
4. Immigration Compliance Certification: Prior to commencing work under any contract for the physical performance of services, the contractor shall complete the “IMMIGRATION COMPLIANCE CERTIFICATION” form attached to these “Procedures & Requirements” and submit the same to the County.
Prior to allowing any other subcontractor to perform work under the contract, the contractor shall obtain a completed “IMMIGRATION COMPLIANCE CERTIFICATION” from each subcontractor (regardless of tier) and submit the same to the County.
FORM ATTACHMENTS:
1. CONTRACTOR AFFIDAVIT & AGREEMENT (EXHIBIT A);
2. SUBCONTRACTOR AFFIDAVIT & AGREEMENT (EXHIBIT A-1);
3. IMMIGRATION COMPLIANCE CERTIFICATION (EXHIBIT A-2).
24 CONTRACTOR AFFIDAVIT & AGREEMENT
(EXHIBIT A)
This affidavit must be signed, notarized and submitted with any bid requiring the performance of physical services. If the affidavit is not submitted at the time of the bid, the bid will be determined non-responsive and will be disqualified.
By executing this affidavit, the undersigned contractor verifies compliance with O.C.G.A. §13-10-91, stating affirmatively that the individual, firm or corporation which is contracting with Cobb County, Georgia, has registered with, is authorized to use, and is participating in a federal work authorization progr am (an electronic verification of work authorization program operated by the U.S. Department of Homeland Security or any equivalent federal work authorization program operated by the U.S. Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA)). The undersigned contractor further attests that it will continue to use the federal Employment Eligibility Verification (EEV) work authorization program throughout the contract period.
The undersigned further agrees that should it employ or contract with any subcontractor(s) or should its subcontractor(s) employ other subcontractor(s) for the physical performance of services pursuant to the contract with Cobb County, Georgia, the contractor or subcontractor will:
(1) Notify the County within five business days of entering into a contract or agreement for hire with any subcontractor(s);
(2) Secure from any subcontractor(s) and/or their subcontractor(s) verification of compliance with O.C.G.A. § 13-10-91 on the attached Subcontractor Affidavit (EXHIBIT A-1) prior to the commencement of any work under the contract/agreement;
(3) Secure from any subcontractor(s) and/or their subcontractor(s) a completed Immigration Compliance Certification (EXHIBIT A -2) prior to the commencement of any work under the contract/agreement;
(4) Provide the subcontractor(s) with legal notice that Cobb County, Georgia, reserves the right to dismiss, or require the dismissal of, any contractor or subcontractor for failing to provide the affidavit and/or for failure to comply with the requirements referenced in the affidavit;
(5) Maintain records of such compliance and provide a copy of each such verification to Cobb County, Georgia, at the time the subcontractor(s) is retained to perform such services or upon any request from Cobb County, Georgia; and
(6) Maintain such records for a period of five (5) years.
___________________________________ _________________________________ EEV (E-Verify) Program Number EEV Program Date of Authorization
____________________________ _________________________________ BY: Authorized Officer or Agent Contractor Business Name [Contractor Name]
___________________________________ ________________________________ Printed Name Date
SWORN AND SUBSCRIBED BEFORE ME
ON THIS THE ____ DAY OF ____________, 202_
_______________________________________
Notary Public Commission Expires: _______
Effective 09-20-2013
25 SUBCONTRACTOR AFFIDAVIT & AGREEMENT
(EXHIBIT A-1)
By executing this affidavit, the undersigned subcontractor verifies its compliance with O.C.G.A. § 13-10-91, stating affirmatively that the individual, firm or corporation which is engaged in the physical performance of services on behalf of Cobb County, Georgia, has registered with, is authorized to use, and is participating in a federal work authorization program (an electronic verification of work authorization program operated by the U.S. Department of Homeland Security or any equivalent federal work authorization program operated by the U.S. Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA)). The undersigned contractor further attests that it will continue to use the federal Employment Eligibility Verification (EEV) work authorization program throughout the contract period.
The undersigned further agrees that should it employ or contract with any subcontractor(s) or should its subcontractor(s) employ other subcontractor(s) for the physical performance of services pursuant to the contract with Cobb County, Georgia, the undersigned subcontractor will:
(1) Notify the County within five business days of entering into a contract or agreement for hire with any subcontractor(s);
(2) Secure from any subcontractor(s) and/or their subcontractor(s) verification of compliance with O.C.G.A. § 13-10-91 on this Subcontractor Affidavit form (EXHIBIT A-1) prior to the commencement of any work under the contract/agreement;
(3) Secure from any subcontractor(s) and/or their subcontractor(s) a completed Immigration Compliance Certification (EXHIBIT A-2) prior to the commencement of any work under the contract/agreement;
(4) Provide the subcontractor(s) with legal notice that Cobb County, Georgia, reserves the right to dismiss, or require the dismissal of, any contractor or subcontractor for failing to provide the affidavit and/or for failure to comply with the requirements referenced in the affidavit; (5) Maintain records of such compliance and provide a copy of each such verification to Cobb County, Georgia, at the time the subcontractor(s) is retained to perform such services or upon any request from Cobb County, Georgia; and
(6) Maintain such records for a period of five (5) years.
___________________________________ _____________________________ EEV (E-Verify) Program Number EEV Program Date of Authorization
___________________________________ _____________________________ BY: Authorized Officer or Agent Subcontractor Business Name [Subcontractor Name]
___________________________________ _____________________________ Printed Name Date
SWORN AND SUBSCRIBED BEFORE ME
ON THIS THE ____ DAY OF ____________, 202_
____________________________________________________
Notary Public Commission Expires: ______
Effective 09-20-2013
26 IMMIGRATION COMPLIANCE CERTIFICATION
(Required to be completed by Contractors and all Subcontractors) (EXHIBIT A-2)
I certify to the Cobb County Board of Commissioners that the following employees will be assigned to:
____________________________________________________________________________ (Project Name/Description)
_____________________ _______________________ ________________________
_____________________ _______________________ ________________________
_____________________ _______________________ ________________________
I further certify to Cobb County, Georgia the following:
● The E-Verify program was used to verify the employment eligibility of each of the above- listed employees hired after the effective date of our contract to use the program; ● We have not received a Final Nonconfirmation response from E- Verify for any of the employees listed.
● If we receive a Final Nonconfirmation response from E-Verify for any of the employees listed above, we will immediately terminate that employee’s involvement with the project. ● I have confirmed that we have an I-9 on file for every employee listed above and that to the best of my knowledge all the I-9s are accurate.
● To the best of my knowledge and belief, all of the employees on the above list are legally authorized to work in the United States.
● If any other employee is assigned to this Cobb County project, a certification will be provided for said employee prior to the employee commencing work on the project.
To the best of my knowledge and belief, the above certification is true, accurate and complete.
Sworn to by: Employer Name & Address:
_________________________________ _______________________________ Signature of Officer
_________________________________ _______________________________ Printed Name/Title
_________________________________ _______________________________ Date
SWORN AND SUBSCRIBED BEFORE ME
ON THIS THE ____ DAY OF ____________, 202_
Notary Public
Commission Expires: ______
Effective 09-20-2013
27 ATTACHMENT A
Requirements for National Cooperative Contract To Be Administered by OMNIA Partners
The following documents are used in evaluating and administering national cooperative contracts and are included for Supplier’s review and response.
Exhibit A – Response for National Cooperative Contract
Exhibit B – Administration Agreement, Example
Exhibit C – Master Intergovernmental Cooperative Purchasing Agreement, Example Exhibit D – Principal Procurement Agency Certificate, Example Exhibit E – Contract Sales Reporting Template
Exhibit F – Federal Funds Certifications
Exhibit G – New Jersey Business Compliance
Exhibit H – Advertising Compliance Requirement
28 Exhibit A
Response for National Cooperative Contract
1.0 Scope of National Cooperative Contract
Capitalized terms not otherwise defined herein shall have the meanings given to them in the Master Agreement or in the Administration Agreement between Supplier and OMNIA Partners.
1.1 Requirement
Cobb County, GA (hereinafter defined and referred to as “Principal Procurement Agency”), on behalf of itself and OMNIA Partners, Public Sector, Inc., a Delaware corporation (“OMNIA Partners ”), is requesting proposals for Human Resource Information Systems and Related Products and Services. The intent of this Request for Proposal is any contract between Principal Procurement Agency and Supplier resulting from this Request for Proposal ( “Master Agreement ”) be made available to other public agencies nationally, including state and local governmental entities, public and private primary, secondary and higher education entities, non- profit entities, and agencies for th e public benefit (“ Public Agencies ”), through OMNIA Partners’ cooperative purchasing program. The Principal Procurement Agency has executed a Principal Procurement Agency Certificate with OMNIA Partners , an example of which is included as Exhibit D, and has agreed to pursue the Master Agreement. Use of the Master Agreement by any Public Agency is preceded by their registration with OMNIA Partners as a Participating Public Agency in OMNIA Partners’ cooperative purchasing program. Registration with OMNIA Part ners as a Participating Public Agency is accomplished by Public Agencies entering into a Master Intergovernmental Cooperative Purchasing Agreement, an example of which is attached as Exhibit C, and by using the Master Agreement, any such Participating Public Agency agrees that it is registered with OMNIA Partners, whether pursuant to the terms of the Master Intergovernmental Purchasing Cooperative Agreement or as otherwise agreed to. The terms and pricing established in the resulting Master Agreement between the Supplier and the Principal Procurement Agency will be the same as that available to Participating Public Agencies through OMNIA Partners.
All transactions, purchase orders, invoices, payments etc., will occur directly between the Supplier and each Participating Public Agency individually, and neither OMNIA Partners, any Principal Procurement Agency nor any Participating Public Agency, including their respective agents, directors, employees or representatives, shall be liable to Supplier for any acts, liabilities, damages, etc., incurred by any other Participating Public Agency. Supplier is responsible for knowing the tax laws in each state.
This Exhibit A defines the expectations for qualifying Suppliers based on OMNIA Partners’ requirements to market the resulting Master Agreement nationally to Public Agencies. Each section in this Exhibit A refers to the capabilities, requirements, obligations, and prohibitions of competing Suppliers on a national level in order to serve Participating Public Agencies through OMNIA Partners.
29 These requirements are incorporated into and are considered an integral part of this RFP. OMNIA Partners reserves the right to determine whether to make the Master Agreement awarded by the Principal Procurement Agency available to Participating Public Agencies, in its sole and absolute discretion, and any party submitting a response to this RFP acknowledges that any award by the Principal Procurement Agency does not obligate OMNIA Partners to make the Master Agreement available to Participating Procurement Agencies.
1.2 Marketing, Sales and Administrative Support
During the term of the Master Agreement OMNIA Partners intends to provide marketing, sales, partnership development and administrative support for Supplier pursuant to this section that directly promotes the Supplier’s products and services to Participating Public Agencies through multiple channels, each designed to promote specific products and services to Public Agencies on a national basis.
OMNIA Partners will assign the Supplier a Director of Partner Development who will serve as the main point of contact for the Supplier and will be responsible for managing the overall relationship between the Supplier and OMNIA Partners. The Director of Partner Development will work with the Supplier to develop a comprehensive strategy to promote the Master Agreement and will connect the Supplier with appropriate stakeholders within OMNIA Partners including, Sales, Marketing, Contracting, Training, and Operations & Support.
The OMNIA Partners marketing team will work in conjunction with Supplier to promote the Master Agreement to both existing Participating Public Agencies a nd prospective Public Agencies through channels that may include:
A. Marketing collateral (print, electronic, email, presentations) B. Website
C. Trade shows/conferences/meetings
D. Advertising
E. Social Media
The OMNIA Partners sales teams will work in conjunction with Supplier to promote the Master Agreement to both existing Participating Public Agencies and prospective Public Agencies through initiatives that may include:
A. Individual sales calls
B. Joint sales calls
C. Communications/custom er service
D. Training sessions for Public Agency teams
E. Training sessions for Supplier teams
30 The OMNIA Partners contracting teams will work in conjunction with Supplier to promote the Master Agreement to both existing Participating Public Agencies and prospective Public Agencies through:
A. Serving as the subject matter expert for questions regarding joint powers authority and state statutes and regulations for cooperative purchasing B. Training sessions for Public Agency teams
C. Training sessions for Supplier teams
D. Regular business reviews to monitor program success
E. General contract administration
Suppliers are required to pay an Administrative Fee of 3% of the greater of the Contract Sales under the Master Agreement and Guaranteed Contract Sales under this Request for Proposal. Supplier will be required to execute the OMNIA Partners Administration Agreement (Exhibit B). At Supplier’s option, Suppliers may pay additional fees beyond administrative fees, such as technology fees, to OMNIA Partners and/or a third party for additional support and/or access to OMNIA Partners’ technology platform.
1.3 Estimated Volume
The dollar volume purchased under the Master Agreement is estimated to be approximately $200 million annually. While no minimum volume is guaranteed to Supplier, the estimated annual volume is projected based on the current annual volumes among the Principal Procurement Agency, other Participating Public Agencies that are anticipated to utilize the resulting Master Agreement to be made available to them through OMNIA Partners, and volume growth into other Public Agencies through a coordinated marketing approach between Supplier and OMNIA Partners.
1.4 Award Basis
The basis of any contract award resulting from this RFP made by Principal Procurement Agency will, at OMNIA Partners’ option, be the basis of award on a national level through OMNIA Partners. If multiple Suppliers are awarded by Principal Procurement Agency under the Master Agreement, those same Suppliers will be required to extend the Master Agreement to Participating Public Agencies through OMNIA Partners. Utilization of the Master Agreement by Participating Public Agencies will be at the discretion of the individual Participating Public Agency.
Certain terms of the Master Agreement specifically applicable to the Principal Procurement Agency (e.g., governing law) are subject to modification for each Participating Public Agency as Supplier and such Participating Public Agency may agree without being in conflict with the Master Agreement as a condition of the Participating Agency’s purchase and not a modification of the Master Agreement applicable to all Participating Agencies. Participating Agencies may request to enter into a separate supplemental agreement to further define the level of service requirements over and above the minimum defined in the Master Agreement (e.g.,
31 governing law, invoice requirements, order requirements, specialized delivery, diversity requirements such as minority and woman owned businesses, historically underutilized business, etc.) (“Supplemental Agreement”). It shall be the responsibility of the Supplier to comply, when applicable, with the prevailing wage legislation in effect in the jurisdiction of the Participating Agency. It shall further be the responsibility of the Supplier to monitor the prevailing wage rates as established by the appropriate department of labor for any increase in rates during the term of the Master Agreement and adjust wage rates accordingly. In instances where supplemental terms and conditions create additional risk and cost for Supplier, Supplier and Participating Public Agency may negotiate additional pricing above and beyond the stated contract not-to-exceed pricing so long as the added price is commensurate with the additional cost incurred by the Supplier. Any supplemental agreement developed as a result of the Master Agreement is exclusively between the Participating Agency and the Supplier (Contract Sales are reported to OMNIA Partners).
All signed Supplemental Agreements and purchase orders issued and accepted by the Supplier may survive expiration or termination of the Master Agreement. Participating Agencies’ purchase orders may exceed the term of the Master Agreement if the purchase order is issued prior to the expiration of the Master Agreement. Supplier is responsible for reporting all sales and paying the applicable Administrative Fee for sales that use the Master Agreement as the basis for the purchase order, even though Master Agreement may have expired.
1.5 Objectives of Cooperative Program
This RFP is intended to achieve the following objectives regarding availability through OMNIA Partners’ cooperative program:
A. Provide a comprehensive competitively solicited and awarded national agreement offering the Products covered by this solicitation to Participating Public Agencies; B. Establish the Master Agreement as the Supplier’s primary go to market strategy to Public Agencies nationwide;
C. Achieve cost savings for Supplier and Public Agencies through a single solicitation process that will reduce the Supplier’s need to respond to multiple solicitations and Public Agencies need to conduct their own solicitation process; D. Combine the aggregate purchasing volumes of Participating Publi c Agencies to achieve cost effective pricing.
2.0 REPRESENTATIONS AND COVENANTS
As a condition to Supplier entering into the Master Agreement, which would be available to all Public Agencies, Supplier must make certain representations, warranties and covenants to both the Principal Procurement Agency and OMNIA Partners designed to ensure the success of the Master Agreement for all Participating Public Agencies as well as the Supplier.
2.1 Corporate Commitment
Supplier commits that (1) the Master Agreement has received all necessary corporate authorizations and support of the Supplier’s executive management, (2) the Master
32 Agreement is Supplier's primary “go to market” strategy for Public Agencies, (3) the Master Agreement will be promoted to all Public Agencies, including any existing customers, and Supplier will transition existing customers, upon their request, to the Master Agreement, and (4) that the Supplier has read and agrees to the terms and conditions of the Administration Agreement with OMNIA Partners and will execute such agreement concurrent with and as a condition of its execution of the Master Agreement with the Principal Procurement Agency. Supplier will identify an executive corporate sponsor and a separate national account manager within the RFP response that will be responsible for the overall management of the Master Agreement.
2.2 Pricing Commitment
Supplier commits the not- to-exceed pricing provided under the Master Agreement pricing is its lowest available (net to buyer) to Public Agencies nationwide and further commits that if a Participating Public Agency is eligible for lower pricing through a national, state, regional or local or cooperative contract, the Supplier will match such lower pricing to that Participating Public Agency under the Master Agreement.
2.3 Sales Commitment
Supplier commits to aggressively market the Master Agreement as its go to market strategy in this defined sector and that its sales force will be trained, engaged and committed to offering the Master Agreement to Public Agencies through OMNIA Partners nati onwide. Supplier commits that all Master Agreement sales will be accurately and timely reported to OMNIA Partners in accordance with the OMNIA Partners Administration Agreement. Supplier also commits its sales force will be compensated, including sales incentives, for sales to Public Agencies under the Master Agreement in a consistent or better manner compared to sales to Public Agencies if the Supplier were not awarded the Master Agreement.
3.0 SUPPLIER RESPONSE
Supplier must supply the following information for the Principal Procurement Agency to determine Supplier’s qualifications to extend the resulting Master Agreement to Participating Public Agencies through OMNIA Partners.
3.1 Company
A. Brief history and description of Supplier to include experience providing similar products and services.
B. Total number and location of salespersons employed by Supplier.
C. Number and location of support centers (if applicable) and location of corporate office.
D. Annual sales for the three previous fiscal years.
a. Submit FEIN and Dunn & Bradstreet report.
E. Describe any green or environmental initiatives or policies.
33 F. Describe any diversity programs or partners supplier does business with and how Participating Agencies may use diverse partners through the Master Agreement.
Indicate how, if at all, pricing changes when using the diversity program. If there are any diversity programs, provide a list of diversity alliances and a copy of their certifications.
G. Indicate if supplier holds any of the below certifications in any classified areas and include proof of such certification in the response:
a. Minority Women Business Enterprise
Yes No
If yes, list certifying agency: ___________________________________ b. Small Business Enterprise (SBE) or Disadvantaged Business Enterprise (DBE)
Yes No
If yes, list certifying agency: ___________________________________ c. Historically Underutilized Business (HUB)
Yes No
If yes, list certifying agency: ___________________________________ d. Historically Underutilized Business Zone Enterprise (HUBZone) Yes No
If yes, list certifying agency: ___________________________________ e. Other recognized diversity certificate holder
Yes No
If yes, list certifying agency: ____________________________________ H. List any relationships with subcontractors or affiliates intended to be used when providing services and identify if subcontractors meet minority- owned standards.
If any, list which certifications subcontractors hold and certifying agency.
I. Describe how supplier differentiates itself from its competitors.
J. Describe any present or past litigation, bankruptcy or reorganization involving supplier.
K. Felony Conviction Notice: Indicate if the supplier:
a. is a publicly held corporation and this reporting requirement is not applicable;
b. is not owned or operated by anyone who has been convicted of a felony; or c. is owned or operated by and individual(s) who has been convicted of a felony and provide the names and convictions.
L. Describe any debarment or suspension actions taken against supplier
34 3.2 Distribution, Logistics
A. Each offeror awarded an item under this solicitation may offer their complete product and service offering/a balance of line. Describe the full line of products and services offered by supplier.
B. Describe how supplier proposes to distribute the products/service nationwide.
Include any states where products and services will not be offered under the Master Agreement, including U.S. Territories and Outlying Areas.
C. Describe how Participating Agencies are ensured they will receive the Master Agreement pricing; include all distribution channels such as direct ordering, retail or in-store locations, through distributors, etc. Describe how Participating Agencies verify and audit pricing to ensure its compliance with the Master Agreement.
D. Identify all other companies that will be involved in processing, handling or shipping the products/service to the end user.
E. Provide the number, size and location of Supplier’s distribution facilities, warehouses and retail network as applicable.
3.3 Marketing and Sales
A. Given the public nature of the solicitation and contract, OMNIA Partners makes solicitation and contract documentation, including pricing documents, available on its website so Participating Public Agencies may easily conduct their due diligence. Describe any portions of the response that should not be available on the website and why those portions should not be available.
B. Provide a detailed ninety -day plan beginning from award date of the Master Agreement describing the strategy to immediately implement the Master Agreement as supplier’s primary go to market strategy for Public Agencies to supplier’s teams nationwide, to include, but not limited to:
i. Executive leadership endorsement and sponsorship of the award as the public sector go-to-market strategy within first 10 days ii. Training and education of Supplier’s national sales force with participation from the Supplier’s executive leadership, along with the OMNIA Partners team within first 90 days
C. Provide a detailed ninety -day plan beginning from award date of the Master Agreement describing the strategy to market the Master Agreement to current Participating Public Agencies, existing Public Agency customers of Supplier, as well as to prospective Public Agencies nationwide immediately upon award, to include, but not limited to:
i. Creation and distribution of a co-branded press release to trade publications
35 ii. Announcement, Master Agreement details and contact information published on the Supplier’s website within first 90 days iii. Design, publication and distribution of co- branded marketing materials within first 90 days
iv. Commitment to attendance and participation with OMNIA Partners at national (i.e., NIGP Annual Forum, NPI Conference, etc.), regional (i.e., Regional NIGP Chapter Meetings, Regional Cooperative Summits, etc.) and supplier-specific trade shows, conferences and meetings throughout the term of the Master Agreement
v. Commitment to attend, exhibit and participate at the NIGP Annual Forum in an area reserved by OMNIA Partners for partner suppliers. Booth space will be purchased and staffed by Supplier. In addition, Supplier commits to provide reasonable assistance to the overall promotion and marketing efforts for the NIGP Annual Forum, as directed by OMNIA Partners. vi. Design and publication of national and regional advertising in trade publications throughout the term of the Master Agreement vii. Ongoing marketing and promotion of the Master Agreement throughout its term (case studies, collateral pieces, presentations, promotions, etc.) viii. Dedicated OMNIA Partners internet web -based homepage on Supplier’s website with:
• OMNIA Partners standard logo;
• Copy of original Request for Proposal;
• Copy of Master Agreement and amendments between Principal Procurement Agency and Supplier;
• Summary of Products and pricing;
• Marketing Materials
• Electronic link to OMNIA Partners’ website including the online registration page;
• A dedicated toll -free number and email address for OMNIA Partners
D. Describe how Supplier will transition any existing Public Agency customers’ accounts to the Master Agreement available nationally through OMNIA Partners.
Include a list of current cooperative contracts (regional and national) Supplier holds and describe how the Master Agreement will be positioned among the other cooperative agreements.
E. Acknowledge Supplier agrees to provide its logo(s) to OMNIA Partners and agrees to provide permission for reproduction of such logo in marketing communications and promotions. Acknowledge that use of OMNIA Partners logo will require permission for reproduction, as well.
F. Confirm Supplier will be proactive in direct sales of Supplier’s goods and services to Public Agencies nationwide and the timely follow up to leads established by
36 OMNIA Partners. All sales materials are to use the OMNIA Partners logo. At a minimum, the Supplier’s sales initiatives should communicate:
i. Master Agreement was competitively solicited and publicly awarded by a Principal Procurement Agency
ii. Best government pricing
iii. No cost to participate
iv. Non-exclusive
G. Confirm Supplier will train its national sales force on the Master Agreement. At a minimum, sales training should include:
i. Key features of Master Agreement
ii. Working knowledge of the solicitation process
iii. Awareness of the range of Public Agencies that can utilize the Master Agreement through OMNIA Partners
iv. Knowledge of benefits of the use of cooperative contracts
H. Provide the name, title, email and phone number for the person(s), who will be responsible for:
i. Executive Support
ii. Marketing
iii. Sales
iv. Sales Support
v. Financial Reporting
vi. Accounts Payable
vii. Contracts
I. Describe in detail how Supplier’s national sales force is structured, including contact information for the highest-level executive in charge of the sales team.
I. Explain in detail how the sales teams will work with the OMNIA Partners team to implement, grow and service the national program.
J. Explain in detail how Supplier will manage the overall national program throughout the term of the Master Agreement, including ongoing coordination of marketing and sales efforts, timely new Participating Public Agency account set - up, timely contract administration, etc.
K. State the amount of Supplier’s Public Agency sales for the previous fiscal year.
Provide a list of Supplier’s top 10 Public Agency customers, the total purchases for each for the previous fiscal year along with a key contact for each.
L. Describe Supplier’s information systems capabilities and limitations regarding order management through receipt of payment, including description of multiple platforms that may be used for any of these functions.
37 M. Provide the Contract Sales (as defined in Section 12 of the OMNIA Partners Administration Agreement) that Supplier will guarantee each year under the Master Agreement for the initial three years of the Master Agreement (“Guaranteed Contract Sales”).
$_______.00 in year one
$_______.00 in year two
$_______.00 in year three
To the extent Supplier guarantees minimum Contract Sales, the Administrative Fee shall be calculated based on the greater of the actual Contract Sales and the Guaranteed Contract Sales.
N. Even though it is anticipated many Public Agencies will be able to utilize the Master Agreement without further formal solicitation, there may be circumstances where Public Agencies will issue their own solicitations. The following options are available wh en responding to a solicitation for Products covered under the Master Agreement.
i. Respond with Master Agreement pricing (Contract Sales reported to OMNIA Partners).
ii. If competitive conditions require pricing lower than the standard Master Agreement not-to-exceed pricing, Supplier may respond with lower pricing through the Master Agreement. If Supplier is awarded the contract, the sales are reported as Contract Sales to OMNIA Partners under the Master Agreement.
iii. Respond with pricing higher than Master Agreement only in the unlikely event that the Public Agency refuses to utilize Master Agreement (Contract Sales are not reported to OMNIA Partners). iv. If alternative or multiple proposals are permitted, respond with pricing higher than Master Agreement, and include Master Agreement as the alternate or additional proposal.
v. Detail Supplier’s strategies under these options when responding to a solicitation.
38 Exhibit B
Administration Agreement, Example
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT (this “ Agreement”) is made this ___ day of ______ 20__, between OMNIA Partners, Public Sector, Inc., a Delaware corporation (“ OMNIA Partners”), and ________________ (“Supplier”).
RECITALS
WHEREAS, the ___________________ (the “ Principal Procurement Agency ”) has entered into a Master Agreement effective _________________, Agreement No_______, by and between the Principal Procurement Agency and Supplier, (as may be amended from time to time in accordance with the terms thereof, the “ Master Agreement”), as attached hereto as Exhibit A and incorporated herein by reference as though fully set forth herein, for the purchase of ____________________________ (the “Product”);
WHEREAS, said Master Agreement provides that any or all public agencies, including state and local governmental entities, public and private primary, secondary and higher education entities, non-profit entities, and agencies for the public benefit (collectively, “Public Agencies”), that register (either via registration on the OMNIA Partners website or execution of a Master Intergovernmental Cooperative Purchasing Agreement, attached hereto as Exhibit B ) (each, hereinafter referred to as a “Participating Public Agency”) may purchase Product at prices stated in the Master Agreement;
WHEREAS, Participating Public Agencies may access the Master Agreement which is offered through OMNIA Partners to Public Agencies;
WHEREAS, OMNIA Partners serves as the cooperative contract administrator of the Master Agreement on behalf of Principal Procurement Agency;
WHEREAS, Principal Procurement Agency desires OMNIA Partners to proceed with administration of the Master Agreement; and
WHEREAS, OMNIA Partners and Supplier desire to enter into this Agreement to make available the Master Agreement t o Participating Public Agencies and to set forth certain terms and conditions governing the relationship between OMNIA Partners and Supplier.
NOW, THEREFORE, in consideration of the payments to be made hereunder and the mutual covenants contained in this Agreement, OMNIA Partners and Supplier hereby agree as follows:
DEFINITIONS
1. Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings given to them in the Master Agreement.
39 TERMS AND CONDITIONS
2. The Master Agreement and the terms and conditions contained therein shall apply to this Agreement except as expressly changed or modified by this Agreement. Supplier acknowledges and agrees that the covenants and agreements of Supplier set forth in the solicitation and Supplier’s response thereto resulting in the Master Agreement are incorporated herein and are an integral part hereof.
3. OMNIA Partners shall be afforded all of the rights, privileges and indemnifications afforded to Principal Procurement Agency by or from Supplier under the Master Agreement, and such rights, privileges and indemnifications shall accrue and apply with equal effect to OMNIA Partners, its agents, employees, directors, and representatives under this Agreement including, but not l imited to, Supplier’s obligation to obtain appropriate insurance.
4. OMNIA Partners shall perform all of its duties, responsibilities and obligations as the cooperative contract administrator of the Master Agreement on behalf of Principal Procurement Agency as set forth herein, and Supplier hereby acknowledges and agrees that all duties, responsibilities and obligations will be undertaken by OMNIA Partners solely in its capacity as the cooperative contract administrator under the Master Agreement.
5. With respect to any purchases by Principal Procurement Agency or any Participating Public Agency pursuant to the Master Agreement, OMNIA Partners shall not be: (i) construed as a dealer, re-marketer, representative, partner or agent of any type of the Supplier, Principal Procurement Agency or any Participating Public Agency; (ii) obligated, liable or responsible for any order for Product made by Principal Procurement Agency or any Participating Public Agency or any employee thereof under the Master Agreement or for any payment required to be made with respect to such order for Product; and (iii) obligated, liable or responsible for any failure by Principal Procurement Agency or any Participating Public Agency to comply with procedures or requirements of applicable law or the Master Agreement or to obtain the due authorization and approval necessary to purchase under the Master Agreement. OMNIA Partners makes no representation or guaranty with respect to any minimum purchases by Principal Procurement Agency or any Participating Public Agency or any employee thereof under this Agreement or the Master Agreement.
6. OMNIA Partners shall not be responsible for Supplier’s performance under the Master Agreement, and Supplier shall hold OMNIA Partners harmless from any liability that may arise from the acts or omissions of Supplier in connection with the Master Agreement.
7. Supplier acknowledges that, in connection with its access to OMNIA Partners confidential information and/or supply of data to OMNIA Partners, when applicable, it has complied with and shall continue to comply with all laws, regulations and standards that may apply to Supplier, including, without limitation: (a) United States federal and state information security and privacy statutes, regulations and/or best practices, including, without limitation, the Gramm -Leach-Bliley Act, the Massachusetts Data Security Regulations (201 C.M.R. 17.00 et. seq.), the Nevada encryption statute (N.R.S. § 603A), the California data security law (Cal. Civil Code § 1798.80 et. seq.) and California Consumer Privacy Act (Cal. Civil Code § 1798.100 et. seq.); and (b) applicable industry and regulatory standards and best practices (collectively, “Data Regulations”).
With regard to Personal Information that Supplier collects, receives, or otherwise processes under the Agreement or otherwise in connection with performance of the Agreement, Supplier agrees that it will not: (i) sell, rent, release, disclose, disseminate, make available, transfer, or otherwise
40 communicate orally, in writing, or by electronic or other means, such Personal Information to another business or third party for monetary or other valuable consideration; or (ii) retain, use, or disclose such Personal Information outside of the direct business relationship between Supplier and OMNIA Partners or for any purpose other than for the specific purpose of performance of the Agreement, including retaining, using, or disclosing such Personal Information for a commercial purpose other than for performance of the Agreement. By entering into the Agreement, Supplier certifies that it understands the specific restrictions contained in this Section 7 and will comply with them. For purposes hereof, “Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, and includes the specific elements of “personal information” as defined under Data Regulations, as defined herein. Supplier will reasonably assist OMNIA Partners in timely responding to any third party “request to know” or “request to delete” (as defined pursuant to Data Regulations) and will promptly provide OMNIA Partners with information rea sonably necessary for OMNIA Partners to respond to such requests. Where Supplier collects Personal Information directly from Public Agencies or others on OMNIA Partners’ behalf, Supplier will maintain records and the means necessary to enable OMNIA Partner s to respond to such requests to know and requests to delete.
8. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OMNIA
PARTNERS EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES REGARDING OMNIA PARTNERS’ PERFORMANCE AS A COOPERATIVE CONTRACT ADMINISTRATOR OF THE MASTER AGREEMENT. OMNIA
PARTNERS SHALL NOT BE LIABLE IN ANY WAY FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR RELIANCE DAMAGES, EVEN IF OMNIA PARTNERS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TERM OF AGREEMENT; TERMINATION
9. This Agreement shall be in effect so long as the Master Agreement remains in effect, provided, however, that the provisions of Sections 3- 8 and 11- 22, hereof and the indemnifications afforded by the Supplier to OMNIA Partners in the Master Agreement, to the extent such provisions survive any expiration or termination of the Master Agreement, shall survive the expiration or termination of this Agreement.
NATIONAL PROMOTION
10. OMNIA Partners and Supplier shall publicize and promote the availability of the Master Agreement’s products and services to Public Agencies and such agencies’ employees.
Supplier shall require each Public Agency to register its participation in the OMNIA Partners program by either registering on the OMNIA Partners website ( www.omniapartners.com/publicsector ) or
executing a Master Intergovernmental Cooperative Purchasing Agreement prior to processing the Participating Public Agency’s first sales order. Upon request , Supplier shall make available to interested Public Agencies a copy of the Master Agreement and such price lists or quotes as may be necessary for such Public Agencies to evaluate potential purchases.
11. Supplier shall provide such marketing and administrative support as set forth in the solicitation resulting in the Master Agreement, including assisting in development of marketing materials as reasonably requested by Principal Procurement Agency and OMNIA Partners. Supplier shall be responsible for obtaining permission or license of use and payment of any license fees for all content and images Supplier provides to OMNIA Partners or posts on the OMNIA Partners website.
41 Supplier shall indemnify, defend and hold harmless OMNIA Partners for use of all such content and images including copyright infringement claims. Supplier and OMNIA Partners each hereby grant to the other party a limited, revocable, non-transferable, non-sublicensable right to use such party’s logo (each, the “Logo”) solely for use in marketing the Master Agreement. Each party shall provide the other party with the standard terms of use of such party’s Logo, and such party shall comply with such terms in all material respects. Both parties shall obtain approval from the other party prior t o use of such party’s Logo. Notwithstanding the foregoing, the parties understand and agree that except as provided herein neither party shall have any right, title or interest in the other party’s Logo. Upon termination of this Agreement, each party shall immediately cease use of the other party’s Logo.
ADMINISTRATIVE FEE, REPORTING & PAYMENT
12. An “Administrative Fee” shall be defined and due to OMNIA Partners from Supplier in the amount of __ percent (__%) (“Administrative Fee Percentage”) multiplied by the total purchase amount paid to Supplier, less refunds and credits on returns, for the sale of products and/or services to Principal Procurement Agency and Participating Public Agencies pursuant to the Master Agreement (as amended from t ime to time and including any renewal thereof) (“ Contract Sales”).
From time to time the parties may mutually agree in writing to a lower Administrative Fee Percentage for a specifically identified Participating Public Agency’s Contract Sales.
13. Supplier shall provide OMNIA Partners with an electronic accounting report monthly, in the format prescribed by OMNIA Partners, summarizing all Contract Sales for each calendar month. The Contract Sales reporting format is provided as Exhibit C (“Contract Sales Report ”), attached hereto and incorporated herein by reference. Contract Sales Reports for each calendar month shall be provided by Supplier to OMNIA Partners by the 10 th day of the following month. Failure to
provide a Contract Sales Report within the time and manner specified herein shall constitute a material breach of this Agreement and if not cured within thirty (30) days of written notice to Supplier shall be deemed a cause for termination of the Master Agreement, at Principal Procurement Agency’s sole discretion, and/or this Agreement, at OMNIA Partners’ sole discretion.
14. Administrative Fee payments are to be paid by Supplier to OMNIA Partners at the frequency and on the due date stated in Section 13, above, for Supplier’s submission of corresponding Contract Sales Reports. Administrative Fee payments are to be made via Automated Clearing House (ACH) to the OMNIA Partners designated financial institution identified in Exhibit D. Failure to provide a payment of the Administrative Fee within th e time and manner specified herein shall constitute a material breach of this Agreement and if not cured within thirty (30) days of written notice to Supplier shall be deemed a cause for termination of the Master Agreement, at Principal Procurement Agency’s sole discretion, and/or this Agreement, at OMNIA Partners’ sole discretion.
All Administrative Fees not paid when due shall bear interest at a rate equal to the lesser of one and one-half percent (1 1/2%) per month or the maximum rate permitted by law until paid in full.
15. Supplier shall maintain an accounting of all purchases made by Participating Public Agencies under the Master Agreement. OMNIA Partners, or its designee, in OMNIA Partners’ sole discretion, reserves the right to compare Participating Public Agency records with Contract Sales Reports submitted by Supplier for a period of four (4) years from the date OMNIA Partners receives such report. In addition, OMNIA Partners may engage a third party to conduct an independent audit of Supplier’s monthly reports. In the event of such an audit, Supplier shall provide all materials reasonably requested relating to such audit by OMNIA Partners at the location designated by OMNIA Partners. In the event an underreporting of Contract Sales and a resulting material underpayment of Administrative Fees is revealed, OMNIA Partners will notify the Supplier in writing. Supplier will
42 have thirty (30) days from the date of such notice to resolve the discrepancy to OMNIA Partners’ reasonable satisfaction, including payment of any Administrative Fees due and owing, together with interest thereon in accordance with Section 13, and reimbursement of OMNIA Partners’ costs and expenses related to such audit.
GENERAL PROVISIONS
16. This Agreement, the Master Agreement and the exhibits referenced herein supersede any and all other agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereto and no other agreement, statement, or promise re lating to the subject matter of this Agreement which is not contained or incorporated herein shall be valid or binding. In the event of any conflict between the provisions of this Agreement and the Master Agreement, as between OMNIA Partners and Supplier, the provisions of this Agreement shall prevail.
17. If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement or to recover any Administrative Fee and accrued interest, the prevailing party shall be entitled to reasonable attorney’s fees and costs in addition to any other relief to which it may be entitled.
18. This Agreement and OMNIA Partners’ rights and obligations hereunder may be assigned at OMNIA Partners’ sole discretion to an affiliate of OMNIA Partners, any purchaser of any or all or substantially all of the assets of OMNIA Partners, or the successor entity as a result of a merger, reorganization, consolidation, conversion or change of control, whether by operation of law or otherwise. Supplier may not assign its obligations hereunder without the prior written consent of OMNIA Partners.
19. All written communications given hereunder shall be delivered by first -class mail, postage prepaid, or overnight delivery on receipt to the addresses as set forth below.
A. OMNIA Partners:
OMNIA Partners
5001 Aspen Grove
Franklin, TN 37067
Attention: Legal Department - Public Sector Contracting
B. Supplier:
____________________
____________________
____________________
____________________
20. If any provision of this Agreement shall be deemed to be, or shall in fact be, illegal, inoperative or unenforceable, the same shall not affect any other provision or provisions herein contained or render the same invalid, inoperative or unenforceable to any extent whatever, and this Agreement will be construed by limiting or invalidating such provision to the minimum extent necessary to make such provision valid, legal and enforceable.
21. This Agreement may not be amended, changed, modified, or altered without the prior written consent of the parties hereto, and no provision of this Agreement may be discharged or
43 waived, except by a writing signed by the parties. A waiver of any particular provision will not be deemed a waiver of any other provision, nor will a waiver given on one occasion be deemed to apply to any other occasion.
22. This Agreement shall inure to the benefit of and shall be binding upon OMNIA Partners, the Supplier and any respective successor and assign thereto; subject, however, to the limitations contained herein.
23. This Agreement will be construed under and governed by the laws of the State of Delaware, excluding its conflicts of law provisions and any action arising out of or related to this Agreement shall be commenced solely and exclusively in the state or federal courts in Williamson County Tennessee.
24. This Agreement may be executed in counterparts, each of which is an original but all of which, together, shall constitute but one and the same instrument.
The exchange of copie s of this
Agreement and of signature pages by facsimile, or by .pdf or similar electronic transmission, will constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile, or by .pdf or similar electronic transmission, will be deemed to be their original signatures for any purpose whatsoever.
[INSERT SUPPLIER ENTITY NAME] OMNIA PARTNERS, PUBLIC
SECTOR, INC.
Signature
Signature
Sarah Vavra
Name
Name
Sr. Vice President, Public Sector
Contracting
Title
Title
Date Date
Exhibit C
Master Intergovernmental Cooperative Purchasing Agreement, Example
MASTER INTERGOVERNMENTAL COOPERATIVE PURCHASING AGREEMENT
This Master Intergovernmental Cooperative Purchasing Agreement (this “ Agreement”) is entered into by and between those certain government agencies that execute a Principal Procurement Agency Certificate (“Principal Procurement Agencies ”) with OMNIA Partners, Public Sector, Inc., a Delaware corporation f/k/a National Intergovernmental Purchasing Alliance Company; Communities Progra m Management, LLC, a California limited liability company d/b/a U.S.
Communities, and/or NCPA LLC, a Texas limited liability company d/b/a National Cooperative Purchasing Alliance (collectively, “ OMNIA Partners ”), in its capacity as the cooperative administrator, to be appended and made a part hereof and such other agencies (“Participating Public Agencies”), as defined in each Master Agreement (as defined below), who register to participate in the cooperative purchasing programs administered by OMNIA Partne rs and its affiliates and subsidiaries (collectively, the “ OMNIA Partners Parties ”) by either registering on the OMNIA Partners website (www.omniapartners.com/publicsector or any successor website), or by executing a copy of this Agreement.
RECITALS
WHEREAS, after a competitive solicitation and selection process by Principal Procurement Agencies, in compliance with their own policies, procedures, rules and regulations, a number of suppliers have entered into “ Master Agreements” (herein so called) to provide a variety of goods, products and services (“ Products”) to the applicable Principal Procurement Agency and the Participating Public Agencies;
WHEREAS, Master Agreements are made available by Principal Procurement Agencies through the OMNIA Partners Parties and provide that Participating Public Agencies may purchase Products on the same terms, conditions and pricing as the Principal Procurement Agency, subj ect to any applicable federal and/or local purchasing ordinances and the laws of the State of purchase; and
WHEREAS, in addition to Master Agreements, the OMNIA Partners Parties may from time to time offer Participating Public Agencies the opportunity to acquire Products through other group purchasing agreements.
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, and of the mutual benefits to result, the parties hereby agree as follows:
1. Each party will facilitate the cooperative procurement of Products.
2. The Participating Public Agencies shall procure Products in accordance with and subject to the relevant federal, state and local statutes, ordinances, rules and regulations that govern Participating Publ ic Agency’s procurement practices. The Participating Public Agencies hereby acknowledge and agree that it is the intent of the parties that all provisions of this Agreement and that Principal Procurement Agencies’ participation in the program described her ein comply with all applicable laws, including but not limited to the requirements of 42 C.F.R. § 1001.952(j), as may be amended from time to time. The Participating Public Agencies further acknowledge and agree that they are solely responsible for their compliance with all applicable “safe harbor” regulations,
45 including but not limited to any and all obligations to fully and accurately report discounts and incentives.
3. The Participating Public Agency represents and warrants that the Participating Public Agency is not a hospital or other healthcare provider and is not purchasing Products on behalf of a hospital or healthcare provider; provided that the foregoing shall not prohibit Participating Public Agency from furnishing health care services so long as the furnishing of health care services is not in furtherance of a primary purpose of the Participating Public Agency.
4. The cooperative use of Master Agreements shall be in accordance with the terms and conditions of the Master Agreements, except as modification of those terms and conditions is otherwise required by applicable federal, state or local law, policies or procedures.
5. The Principal Procurement Agencies will mak e available, upon reasonable request, Master Agreement information which may assist in improving the procurement of Products by the Participating Public Agencies.
6. The Participating Public Agency agrees the OMNIA Partners Parties may provide access to group purchasing organization (“GPO”) agreements directly or indirectly by enrolling the Participating Public Agency in another GPO’s purchasing program, provided that the purchase of Products through the OMNIA Partners Parties or any other GPO shall be at the Participating Public Agency’s sole discretion.
7. The Participating Public Agencies (each a “Procuring Party ”) that procure Products through any Master Agreement or GPO Product supply agreement (each a “ GPO Contract”) will make timely payments to the distributor, manufacturer or other vendor (collectively, “Supplier”) for Products received in accordance with the terms and conditions of the Master Agreement or GPO Contract, as applicable. Payment for Products and inspections and acceptance of Products ordered by the Procuring Party shall be the exclusive obligation of such Procuring Party. Disputes between Procuring Party and any Supplier shall be resolved in accordance with the law and venue rules of the State of purchase unless otherwise agreed to by the Procuring Party and Supplier.
8. The Procuring Party shall not use this Agreement as a method for obtaining additional concessions or reduced prices for purchase of similar products or services outside of the Master Agreement. Master Agreements may be structu red with not -to-exceed pricing, in which cases the Supplier may offer the Procuring Party and the Procuring Party may accept lower pricing or additional concessions for purchase of Products through a Master Agreement.
9. The Procuring Party shall be responsible for the ordering of Products under this Agreement. A non-procuring party shall not be liable in any fashion for any violation by a Procuring Party, and, to the extent permitted by applicable law, the Procuring Party shall hold non-procuring party harmless from any liability that may arise from the acts or omissions of the Procuring Party.
10. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE OMNIA
PARTNERS PARTIES EXPRESSLY DISCLAIM ALL EXPRESS OR IMPLIED
REPRESENTATIONS AND WARRANTIES REGARDING ANY PRODUCT, MASTER AGREEMENT AND GPO CONTRACT. THE OMNIA PARTNERS PARTIES SHALL NOT BE
LIABLE IN ANY WAY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL,
EXEMPLARY, PUNITIVE, OR RELIANCE DAMAGES, EVEN IF THE OMNIA PARTNERS PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE
46 PROCURING PARTY ACKNOWLEDGES AND AGREES THAT THE OMNIA PARTNERS
PARTIES SHALL HAVE NO LIABILITY FOR ANY ACT OR OMISSION BY A SUPPLIER OR OTHER PARTY UNDER A MASTER AGREEMENT OR GPO CONTRACT.
11. This Agreement shall remain in effect until termination by either party giving thirty (30) days’ written notice to the other party. The provisions of Paragraphs 6 - 10 hereof shall survive any such termination.
12. This Agreement shall take effect upon (i) execution of the Principal P rocurement Agency Certificate, or (ii) registration on the OMNIA Partners website or the execution of this Agreement by a Participating Public Agency, as applicable.
Participating Public Agency: OMNIA Partners, as the cooperative administrator on behalf of Principal
Procurement Agencies:
OMNIA PARTNERS, PUBLIC SECTOR,
INC.
Authorized Signature Signature
Sarah E. Vavra
Name Name
Sr. Vice President, Public Sector Contracting
Title and Agency Name Title
Date Date
Exhibit D
Principal Procurement Agency Certificate, Example
PRINCIPAL PROCUREMENT AGENCY CERTIFICATE
In its capacity as a Principal Procurement Agency (as defined below) for OMNIA Partners, Public Sector, Inc., a Delaware corporation (“OMNIA Partners”), [PPA Name] agrees to pursue Master Agreements for Products as specified in the attached Exhibits to this Principal Procurement Agency Certificate.
I hereby acknowledge, in my capacity as _____________ of and on behalf of [PPA Name] (“Principal Procurement Agency”), that I have read and hereby agree to the general terms and conditions set forth in the attached Master Intergovernm ental Cooperative Purchasing Agree ment regulating the use of the Master Agreements and purchase of Products that from time to time are made available by Principal Procurement Agencies to Participating Pub lic Agencies nationwide through OMNIA Partners.
I understand that the purchase of one or more Products under the provisions of the Master Intergovernmental Cooperative Purchasing Agreement is at the sole and complete discretion of the Participating Public Agency.
Authorized Signature, [PPA Name]________
Signature
Name
Title
Date
Exhibit E
Contract Sales Reporting Template
Contract Sales Report submitted electronically in Microsoft Excel:
49 Exhibit F
Federal Funds Certifications
FEDERAL CERTIFICATIONS
ADDENDUM FOR AGREEMENT FUNDED BY U.S. FEDERAL GRANT
TO WHOM IT MAY CONCERN:
Participating Agencies may elect to use federal funds to purchase under the Master Agreement. This form should be completed and returned.
DEFINITIONS
Contract means a legal instrument by which a non–Federal entity purchases property or services needed to carry out the project or program under a Federal award. The term as used in this part does not include a legal instrument, even if the non –Federal entity considers it a contract, when the substance of the transaction meets the definition of a Federal award or subaward
Contractor means an entity that receives a contract as defined in Contract.
Cooperative agreement means a legal instrument of financial assistan ce between a Federal awarding agency or pass-through entity and a non–Federal entity that, consistent with 31 U.S.C. 6302– 6305:
(a) Is used to enter into a relationship the principal purpose of which is to transfer anything of value from the Federal awarding agency or pass-through entity to the non –Federal entity to carry out a public purpose authorized by a law of the United States (see 31 U.S.C. 6101(3)); and not to acquire property or services for the Federal government or pass-through entity's direct benefit or use;
(b) Is distinguished from a grant in that it provides for substantial involvement between the Federal awarding age ncy or pass-through entity and the non– Federal entity in carrying out the activity contemplated by the Federal award. (c) The term does not include:
(1) A cooperative research and development agreement as defined in 15 U.S.C. 3710a; or (2) An agreement tha t provides only:
(i) Direct United States Government cash assistance to an individual; (ii) A subsidy;
(iii) A loan;
(iv) A loan guarantee; or
(v) Insurance.
Federal awarding agency means the Federal agency that provides a Federal award directly to a non –Federal entity
Federal award has the meaning, depending on the context, in either paragraph (a) or (b) of this section:
(a)(1) The Federal financial assistance that a non– Federal entity receives directly from a Federal awarding agency or indirectly from a pass-through entity, as described in § 200.101 Applicability; or (2) The cost -reimbursement contract under the Federal Acquisition Regulations that a non –Federal entity receives directly from a Federal awarding agency or indirectly from a pass -through entity, as described in § 200.101 Applicability.
(b) The instrument setting forth the terms and conditions. The instrument is the grant agreement, cooperative agreement, other agreement for assistance covered in paragraph (b) of § 200.40 Federal financial as sistance, or the cost-reimbursement contract awarded under the Federal Acquisition Regulations. (c) Federal award does not include other contracts that a Federal agency uses to buy goods or services from a contractor or a contract to operate Federal govern ment owned, contractor operated facilities (GOCOs). (d) See also definitions of Federal financial assistance, grant agreement, and cooperative agreement.
50 Non–Federal entity means a state, local government, Indian tribe, institution of higher education (IHE), or nonprofit organization that carries out a Federal award as a recipient or subrecipient.
Nonprofit organization means any corporation, trust, association, cooperative, or other organization, not including IHEs, that:
(a) Is operated primarily for scientific, educational, service, charitable, or similar purposes in the public interest; (b) Is not organized primarily for profit; and
(c) Uses net proceeds to maintain, improve, or expand the operations of the organization.
Obligations means, when used in connection with a non –Federal entity's utilization of funds under a Federal award, orders placed for property and services, contracts and subawards made, and similar transactions during a given period that require payment by the non–Federal entity during the same or a future period.
Pass-through entity means a non– Federal entity that provides a subaward to a subrecipient to carry out part of a Federal program.
Recipient means a non– Federal entity that receives a Federal award directly from a Federal awarding agency to carry out an activity under a Federal program. The term recipient does not include subrecipients.
Simplified acquisition threshold means the dollar amount below which a non–Federal entity may purchase property or services using small purchase methods. Non –Federal entities adopt small purchase procedures in order to expedite the purchase of items costing less than the simplified acquisition threshold. The simplified acquisition threshold is set by the Federal Acquisition Regulation at 48 CFR Subpart 2.1 (Definitions) and in accordance with 41 U.S.C. 1908. As of the publication of this part, the simplified acquisition threshold is $ 250,000, but this threshold is periodically adjusted for inflation. (Also see definition of § 200.67 Micro- purchase.)
Subaward means an award provided by a pass-through entity to a subrecipient for the subrecipient to carry out part of a Federal award received by the pass -through entity. It does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. A subaward may be provided through any form of legal agreement, including an agreement that the pass-through entity considers a contract.
Subrecipient means a non –Federal entity that receives a subaward from a pass -through entity to carry out part of a Federal program; but does not include an individual that is a beneficiary of such program. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency.
Termination means the ending of a Federal award, in whole or in part at any time prior to the planned end of period of performance.
The following provisions may be required and apply when Participating Agency expends federal funds for any purchase resulting from this procurement process. Per FAR 52.204-24 and FAR 52.204- 25, solicitations and resultant contracts shall contain the following provisions.
52.204-24 Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (Oct 2020)
The Offeror shall not complete the representation at paragraph (d)(1) of this provision if the Offeror has represented that it "does not provide covered telecommunications equipment or services as a part of its offered products or services to the Government in the performance of any contract, subcontract, or other contractual instrument" in paragraph (c)(1) in the provision at 52.204-26, Covered Telecommunications Equipment or Services —Representation, or in paragraph (v)(2)(i) of the provision at 52.212-3, Offeror Representations and Certifications -Commercial Items. The Offeror shall not complete the representation in paragraph (d)(2) of this provision if the Offeror has represented that it "does not use covered telecommunications equipment or services, or any equipment, system, or service that uses covered telecommunications equipment or services" in paragraph (c)(2) of the provision at 52.204-26, or in paragraph (v)(2)(ii) of the provision at 52.212-3.
51 (a) Definitions. As used in this provision—
Backhaul, covered telecommunications equipment or services, critical technology, interconnection arrangements, reasonable inquiry, roaming, and substantial or essential component have the meanings provided in the clause 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (b) Prohibition.
(1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. Nothing in the prohibition shall be construed to—
(i) Prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or (ii) Cover telecommunications equipment that cannot route or redirect user data traffic or cannot permit visibility into any user data or packets that such equipment transmits or otherwise handles. (2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115- 232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract or extending or renewing a contract with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract. Nothing in the prohibition shall be construed to— (i) Prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or (ii) Cover telecommunications equipment that cannot route or redirect user data traffic or cannot permit visibility into any user data or packets that such equipment transmits or otherwise handles. (c) Procedures. The Offeror shall review the list of excluded parties in the System for Award Management (SAM) (https://www.sam.gov) for entities excluded from receiving federal awards for "covered telecommunications equipment or services". (d) Representation. The Offeror represents that—
(1) It □ will, □ will not provide covered telecommunications equipment or services to the Government in the performance of any contract, subcontract or other contractual instrument resulting from this solicitation. The Offeror shall provide the additional disclosure information required at paragraph (e)(1) of this section if the Offeror responds "will" in paragraph (d)(1) of thi s section; and
(2) After conducting a reasonable inquiry, for purposes of this representation, the Offeror represents that — It □ does, □ does not use covered telecommunications equipment or services, or use any equipment, system, or service that uses covered telecommunications equipment or services. The Offeror shall provide the additional disclosure information required at paragraph (e)(2) of this section if the Offeror responds "does" in paragraph (d)(2) of this section. (e) Disclosures.
(1) Disclosure for the representation in paragraph (d)(1) of this provision. If the Offeror has responded "will" in the representation in paragraph (d)(1) of this provision, the Offeror shall provide the following information as part of the offer . (i) For covered equipment—
(A) The entity that produced the covered telecommunications equipment (include entity name, unique entity identifier, CAGE code, and whether the entity was the original equipment manufacturer (OEM) or a distributor, if known); (B) A description of all covered telecommunications equipment offered (include brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); and (C) Explanation of the proposed use of covered telecommunications equipment and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(1) of this provision. (ii) For covered services—
(A) If the service is related to item maintenance: A description of all covered telecommunications services offered (include on the item being maintained: Brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); or
52 (B) If not associated with maintenance, the Product Service Code (PSC) of the service being provided; and explanation of the proposed use of covered telecommunications services and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(1) of this provision. (2) Disclosure for the representation in paragraph (d)(2) of this provision. If the Offeror has responded "does" in the representation in paragraph (d)(2) of this provision, the Offeror shall provide the following information as part of the offer:
(i) For covered equipment—
(A) The entity that produced the covered telecommunications equipment (include entity name, unique entity identifier, CAGE code, and whether the entity was the OEM or a distributor, if known); (B) A description of all covered telecommunications equipment offered (include brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); and (C) Explanation of the proposed use of covered telecommunications equipment and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(2) of this provision. (ii) For covered services—
(A) If the service is related to item maintenance: A description of all covered telecommunications services offered (include on the item being maintained: Brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); or
(B) If not associated with maintenance, the PSC of the service being provided; and explanation of the proposed use of covered telecommunications services and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(2) of this provision.
52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (Aug 2020).
(a) Definitions. As used in this clause—
Backhaul means intermediate links between the core network, or backbone network, and the small subnetworks at the edge of the network (e.g., connecting cell phones/towers to the core telephone network). Backhaul can be wireless (e.g., microwave) or wired (e.g., fiber optic, coaxial cable, Ethernet).
Covered foreign country means The People’s Republic of China.
Covered telecommunications equipment or services means– (1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities);
(2) For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);
(3) Telecommunications or video surveillance services provided by such entities or using such equipment; or (4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
Critical technology means–
(1) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations; (2) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled- (i) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and bio logical weapons proliferation, nuclear nonproliferation, or missile technology; or (ii) For reasons relating to regional stability or surreptitious listening; (3) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by part 810 of title 10, Code of Federal Regulations (relating to assistance to foreign atomic energy activities); (4) Nuclear facilities, equipment, and material covered by part 110 of title 10, Code of Federal Regulations (relating to export and import of nuclear equipment and material);
53 (5) Select agents and toxins covered by part 331 of title 7, Code of Federal Regulations, part 121 of title 9 of such Code, or part 73 of title 42 of such Code; or
(6) Emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of 2018 (50 U.S.C. 4817).
Interconnection arrangements means arrangements governing the physical connection of two or more networks to allow the use of another's network to hand off traffic where it is ultimately delivered (e.g., connection of a customer of telephone provider A to a customer of telephone company B) or sharing data and other information resourc es.
Reasonable inquiry means an inquiry designed to uncover any information in the entity's possession about the identity of the producer or provider of covered telecommunications equipment or services used by the entity that excludes the need to include an internal or third-party audit.
Roaming means cellular communications services (e.g., voice, video, data) received from a visited network when unable to connect to the facilities of the home network either because signal coverage is too weak or because traffic is too high.
Substantial or essential component means any component necessary for the proper function or performance of a piece of equipment, system, or service.
(b) Prohibition.
(1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115- 232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. The Contractor is prohibited from providing to the Government any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104.
(2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115- 232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract, or extending or renewing a contract, with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104. This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract.
(c) Exceptions. This clause does not prohibit contractors from providing— (1) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
(2) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.
(d) Reporting requirement.
(1) In the event the Contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the Contractor is notified of such by a subcontractor at any tier or by any other source, the Contractor shall report the information in paragraph (d)(2) of this clause to the Contracting Officer, unless elsewhere in this contract are established procedures for reporting the information; in the case of the Department of Defense, the Contractor shall report to the website at https://dibnet.dod.mil. For indefinite delivery contracts, the Contractor shall report to the Contracting Officer for the indefinite delivery contract and the Contracting Officer(s) for any affected order or, in the case of the Department of Defense, identify both the indefinite delivery contract and any affec ted orders in the report provided at https://dibnet.dod.mil. (2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause (i) Within one business day from the date of such identification or notification: the contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Ent ity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended.
54 (ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: any further av ailable information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that wi ll be incorporated to prevent future use or submission of covered telecommunications equipment or services.
(e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e) and excluding paragraph (b)(2), in all subcontracts and other contractual instruments, including subcontracts for the acquisition of commercial items.
The following certifications and provisions may be required and apply when Participating Agency expends federal funds for any purchase r esulting from this procurement process. Pur suant to 2 C.F.R. § 20 0.326, all contracts, including sma ll purchases, awarded by the Participating Agency and the Participating Agency’s subcontractors shall contain the procurement provisions of Appendix II to Part 200, as applicable.
APPENDIX II TO 2 CFR PART 200
(A) Contracts for more than the simplified acquisition threshold currently set at $250,000, which is the inflation adjusted amount determin ed by the Ci vilian Agency Acquisition Co uncil and the Defense Acquisition Re gulations Co uncil (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or leg al remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.
Pursuant to Federal Rule (A) above, when a Participating Agency expends federal funds, the Participating Agency reserves all rights and privileges under the applicable laws and regulations with respect to this procurement in the event of breach of contract by either party.
Does offeror agree? YES Initials of A uthorized Representative of offeror
(B) Termination for cause and for convenience by the grantee or subgrantee including the manner by which it will be effected and the basis for settlement. (All contracts in excess of $10,000)
Pursuant to Federal Rule (B) above, when a Participating Agency expends federal funds, the Participating Agency reserves the right to immediately terminate any a greement in excess of $10,000 resulting from this procuremen t process in the event of a breach or default of the agreement by Offeror as detailed in the terms of the contract.
Does offeror agree? YES Initials of A uthorized Representative of offeror
(C) Equal Employment Opportunity. Except as otherwise pro vided under 41 CFR Part 60, all c ontracts that meet th e definition of “federally assisted construction contract” in 41 CFR Part 60-1.3 must include the equal opportunity clause provided und er 41 CFR 60- 1.4(b), in accordan ce with Exec utive Ord er 1124 6, “E qual E mployment Oppor tunity” (30 CFR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to E qual Employment Opportunity,” and implementing regulations at 41 C FR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.”
Pursuant to Federal Rule (C) above, when a Participating Agency expends federal funds on any federally assisted construction contract, the equal opportunity clause is incorporated by reference herein.
Does offeror agree to abide by the above? YES Initials of Authorized Representative of offeror
(D) Davis-Bacon Ac t, as a mended ( 40 U.S.C. 3141-314 8). Wh en re quired by Feder al pr ogram legislation, all prim e construction contracts in exce ss of $2 ,000 awarded by non-Federal entities must include a pro vision for c ompliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “La bor Sta ndards Provisions Ap plicable to Contracts Covering Feder ally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to labore rs and mechanics at a rate not less th an the prev ailing wag es specif ied in a wage determination made by the Secretary of La bor. In
55 addition, contractors must be re quired to p ay wages not less than once a wee k. The non-Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a co ntract or s ubcontract must be co nditioned upon the acc eptance of the wage determination. The non - Federal entity must report all suspected or report ed violations to the Federal awarding agency. The contracts must also include a pro vision for compliance with the Copeland “Anti-K ickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor re gulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or P ublic Work Financed in Whole or in Part by Loans or Gra nts from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non -Federal entity must report all suspected or reported violations to the Federal awarding agency.
Pursuant to Feder al Rule (D) ab ove, when a Participating Agency expends federal funds during the term of an award for all contracts and subgrants for construction or repair, offeror will be in compliance with all applicable Davis-Bacon Act provisions.
Does offeror agree? YES Initials of Authorized Representative of offeror
(E) Contract Work Hours and Safety Sta ndards Act (40 U.S.C. 3701-370 8). Where applicable, all contracts awarded by the non-Federal entity in exce ss of $100 ,000 that invo lve the e mployment of me chanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standar d work week is perm issible provided that the worker is co mpensated at a rate of not less than one and a h alf times the bas ic rate of p ay for all hours worked in excess of 40 hours in the work week. The requirements o f 40 U.S.C. 3704 are applicable to construction work and pro vide that no laborer or mechanic must be re quired to work in surroundings or under working conditions which are unsanitary, hazar dous or da ngerous. These re quirements do not a pply to the purchases o f s upplies or materials or articles ordinar ily av ailable on the op en mark et, or contra cts for trans portation or transm ission of intelligence.
Pursuant to Feder al Rule (E) above, when a Participating Agency expends federal funds, offeror certifies that offeror will be in compliance with all applicable provisions of the Contract Work Hours and S afety Standards Act during the term of an award for all contracts by Participating Agency resulting from this procurement process.
Does offeror agree? YES Initials of Authorized Representative of offeror
(F) Rights to Inv entions Made Under a Contract or Agreement. If the Feder al award meets the definition of “fundin g agreement” under 37 CFR §401 .2 ( a) and the recip ient or s ubrecipient wish es to e nter into a c ontract with a sm all business firm or nonprofit organization regarding the s ubstitution of part ies, as signment or per formance o f experimental, dev elopmental, or resear ch work under that “ funding agre ement,” the recip ient or subrecipient mus t comply with the re quirements of 37 CFR Part 40 1, “Rights to Inv entions Made by Nonprofit Organi zations and Sm all Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
Pursuant to Federal Rule (F) above, when federal funds are expended by Participating Agency, the offeror certifies that during the term of an award for all contracts by Participating Agency resulting from this procurement process, the offeror agrees to comply with all applicable requirements as referenced in Federal Rule (F) above.
Does offeror agree? YES Initials of Authorized Representative of offeror
(G) Clean Air Act ( 42 U.S .C. 7401-767 1q.) and the Feder al Water Po llution Control Act ( 33 U.S .C. 1251-138 7), as amended—Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non - Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251- 138 7). Violations must be re ported to the Feder al awarding agen cy and the Regional Office of the En vironmental Protection A gency (EPA)
In the event Federal
Transit Administration (FTA) or Department of Transportation (DOT) funding is used by Participating Publ ic
56 Agency, Offeror also agrees to include Clean Air and Clean Water requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.
Pursuant to Federal Rule (G) above, when federal funds are expended by Participating Agency, the offeror certifies that during the term of an award for all contracts by Participating Agency member r esulting from this procurement process, the offeror agrees to comply with all applicable requirements as referenced in Federal Rule (G) above.
Does offeror agree? YES Initials of Authorized Representative of offeror
(H) Debarment and Suspension (Executive Orders 12549 and 12689)—A contract award (see 2 CFR 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the Executive Office of the President Office of Management and Budget (OMB) guidelines at 2 CFR 180 that implement Exec utive Orders 12549 (3 CFR part 19 86 Comp., p. 18 9) an d 12689 (3 CFR part 19 89 Comp., p. 235), “Debarment and Suspen sion.” S AM Exclu sions c ontains the nam es of partie s debarred, suspe nded, or otherwise excluded by agencies, as well as parties de clared ineligible under statutory or regulatory authority other than Executive Order 12549.
Pursuant to Federal Rule (H) above, when federal funds are expend ed by Participating Agency, the offeror certifies that during the term of an award for all contracts by Participating Agency resulting from this procurement process, the offeror certifies that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency. If at any time during the term of an award the offeror or its principals becomes debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency, the offeror will notify the Participating Agency.
Does offeror agree? YES Initials of Authorized Representative of offeror
(I) Byrd Anti-Lobbying Amendment ( 31 U.S.C. 1352)— Contractors that apply or b id for an award exceeding $100 ,000 must f ile the re quired certificati on. Each t ier certif ies to the t ier a bove that it will not and h as not used Feder al appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a me mber of Congress, officer or e mployee of Congress, or an employee of a me mber of Congress in connection with obt aining any Fede ral contract, grant or any other award covered b y 31 U.S.C. 1352. Each t ier must also disclose any l obbying with non-Federal funds that takes p lace in connection with obt aining any Feder al award.
Such disclosures are forwarded from tier to tier up to the non-Federal award.
Pursuant to Federal Rule (I) above, when federal funds are expended by Participating Agency, the offeror certifies that during the term and after the awarded term of an award for all contracts by Participating Agency r esulting fr om this procuremen t process, the offeror certifies that it is in compl iance with all app licable provisions of the Byrd A nti-Lobbying Amendment (31 U.S.C. 1352). T he undersigned further certifies that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attem pting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure of Lobbying Activities," in accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
(3) The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such subrecipients shal l certify
57 and disclose accordingly.
Does offeror agree? YES Initials of Authorized Representative of offeror
RECORD RETENTION REQUIREMENTS FOR CONTRACTS INVOLVING FEDERAL FUNDS
When federal funds are expended by Participating Agency for any contract r esulting from this procuremen t process, offeror certifies that it will comply with the record r etention requirements detailed in 2 CFR § 200.333. The offeror further certifies that offeror will retain all records as req uired by 2 CFR § 20 0.333 for a p eriod of three ye ars after gran tees or subgrantees submit final expend iture reports or quarterly or annual financial reports, as applicable, and all other pending matters are closed.
Does offeror agree? YES Initials of Authorized Representative of offeror
CERTIFICATION OF COMPLIANCE WITH THE ENERGY POLICY AND CONSERVATION ACT When Participating Agency expends federal funds for any contract resulting from this procurement process, offeror certifies that it will com ply with the mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42 U.S.C. 6321 et seq.; 49 C.F.R. Part 18).
Does offeror agree? YES Initials of Authorized Representative of offeror
CERTIFICATION OF COMPLIANCE WITH BUY AMERICA PROVISIONS
To the extent purchases are made with Federal Highway Administration, Federal Railroad Administration, or Federal Transit Administration funds, offeror certifies that its products comply with all applicable provisions of the Buy America Act and agrees to provide such certification or applicable waiver with respect to specific products to any Participating Agency upon request.
Purchases made in accordance with the Buy America Act must still follow the applicable procurement rules calling for free and open competition. Additionally:
(1) The Contractor agrees to comply with 49 USC 5323(j) and 49 CFR Part 661, which provide that federal funds may not be obligated unless steel, iron and manufactured products used in FTA -funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 CFR 661.7.A general public interest waiver from the Buy America requirements applies to microprocessors, computers, microcomputers, software or other such devices, which are used solely for the purpose of processing or storing data. This general waiver does not extend to a product or device that merely contains a microprocessor or microcomputer and is not used solely for the purpose of processing or storing data. Separate requirements for rolling stock are set out at 5323(j)(2)(C) and 49 CFR 661.11.
(2) A bidder or offeror must submit to the FTA recipient the appropriate Buy America certification with all bids on FTA - funded contracts, except those subject to a general waiver. Bids or offers that are not accompanied by a completed Buy America certification must be rejected as nonresponsive. This requirement does not apply to lower tier subcontractors.
The following certificates titled FTA and DOT Buy America Certification should be completed and returned with the response as part of FTA and DOT requirements.
FEDERAL TRASIT ADMINISTRATION (FTA) AND DEPARTMENT OF TRANSPORTATION (DOT) - BUY AMERICA: CERTIFICATION REQUIREMENT FOR PROCUREMENTOF ROLLING STOCK
CERTIFICATE OF COMPLIANCE
(select one of the two options, NOT BOTH)
Certificate of Compliance with 49 USC §5323(j)
The proposer hereby certifies that it will comply with the requirements of 49 U.S.C. 5323(j), and the applicable regulations of 49 CFR 661.11.
Check for YES:
OR
58 Certificate of Non-Compliance with 49 USC §5323(j)
The proposer hereby certifies that it cannot comply with the requirements of 49 U.S.C. 5323(j), but may qualify for an exception to the requirement consistent with 49 U.S.C. 5323(j)(2)(C), and the applicable regulations in 49 CFR 661.7.
Check for YES:
FEDERAL TRASIT ADMINISTRATION (FTA) AND DEPARTMENT OF TRANSPORTATION (DOT) - BUY AMERICA: CERTIFICATION REQUIREMENT FOR PROCUREMENT OF STEEL OR MANUFACTURED PRODUCTS
CERTIFICATE OF COMPLIANCE (select one of the two options, NOT BOTH) Certificate of Compliance with 49 USC §5323(j)(1)
The proposer hereby certifies that it will comply with the requirements of 49 U.S.C. 5323(j)(1), and the applicable regulations in 49 CFR part 661.
Check for YES:
OR
Certificate of Non-Compliance with 49 USC §5323(j)(1)
The proposer hereby certifies that it cannot comply with the requirements of 49 U.S.C. 5323(j), but it may qualify for an exc eption to the requirement pursuant to 49 U.S.C. 5323(j)(2), as amended, and the applicable regulations in 49 CFR 661.7.
Check for YES:
Does offeror agree? YES Initials of Authorized Representative of offeror
Offeror’s Name: ___________________________________________________________________________________ Address, City, State, and Zip Code: ________________________________________________________________________ Phone Number: __________________________________
Fax Number: ______________________________________
Printed Name and Title of Authorized Representative: _____________________________________________________________________ Email Address: __________________________________________________________________________________ Signature of Authorized Representative: ____________________________________ Date: _____________________________
CERTIFICATION OF ACCESS TO RECORDS – 2 C.F.R. § 200.336
Offeror agrees that the Inspector General of the Agency or any of their duly authorized representatives shall have access to any documents, papers, or other records of offeror that are p ertinent to offeror’s discharge of its obligations under the Contract for the purpose of making audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to offeror’s personnel for the purpose of interview and discussion relating to such documents.
Does offeror agree? YES Initials of Authorized Representative of offeror
CERTIFICATION OF APPLICABILITY TO SUBCONTRACTORS
Offeror agrees that all contracts it awards pursuant to the Contract shall be bound by the foregoing terms and conditions.
Does offeror agree? YES Initials of Authorized Representative of offeror
COMMUNITY DEVELOPMENT BLOCK GRANTS
Purchases made under this contract may be partially or fully funded with federal grant funds. Funding for this work may include Federal Funding sources, including Community Development Block Grant (CDBG) funds from the U.S. Department of Housing and Urban Development. When such funding is provided, Offeror shall comply with all terms, conditions and requirements
59 enumerated by the grant funding source, as well as requirements of the State statutes for which the contract is utilized, whichever is the more restrictive requirement. When using Federal Funding, Offeror shall comply with all wage and latest reporting provisions of the Federal Davis-Bacon Act. HUD-4010 Labor Provisions also applies to this contract.
Does offeror agree? YES Initials of Authorized Representative of offeror
Offeror agrees to comply with all federal, state, and local laws, rules, regulations and ordinances, as applicable. It is further acknowledged that offeror certifies compliance with all provisions, laws, acts, regulations, etc. as specifically noted above.
Offeror’s Name:
____________________________________________________________________________________________
Address,
City, State, and Zip Code:
_____________________________________________________________________________
Phone Number: ________________________________ F ax Number: ______________________________________
Printed Name and Title of Authorized Representative:
_____________________________________________________________________
Email Address:
____________________________________________________________________________________________
Signature of Authorized Representative: ____________________________________Date: _____________________________
60 FEMA AND ADDITIONAL FEDERAL FUNDING SPECIAL CONDITIONS
Awarded Supplier(s) (also referred to as Contractors) may need to respond to events and losses where products and services are needed for the immediate and initial response to emergency situations such as, but not limited to, water dama ge, fire damage, vandalism cleanup, biohazard cleanup, sewage decontamination, deodorization, and/or wind damage during a disaster or emergency situation. By submitting a proposal, the Supplier is accepted these FEMA and Additional Federal Funding Special Conditions required by the Federal Emergency Management Agency (FEMA) and other federal entities.
“Contract” in the below pages under FEMA AND ADDITIONAL FEDERAL FUNDING SPECIAL CONDITIONS is also referred to and defined as the “Master Agreement”.
“Contractor” in the below pages under FEMA AND ADDITIONAL FEDERAL FUNDING SPECIAL CONDITIONS is also referred to and defined as “Supplier” or “Awarded Supplier”.
Conflicts of Interest
No employee, officer, or agent may participate in the selection, award, or administration of a contract supported by a FEMA award if he or she has a real or apparent conflict of interest. Such a conflict would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of these parties, has a financial or other interest in or a tangible personal benefit from a firm considered for award. 2 C.F.R. § 200.318(c)(1); See also Standard Form 424D, ¶ 7; Standard Form 424B, ¶ 3. i. FEMA considers a “financial interest” to be the potential for gain or loss to the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of these parties as a result of the particular procurement. The prohibited financial interest may arise from ownership of certain financial instruments or investments such as stock, bonds, or real estate, or from a salary, indebtedness, job offer, or similar interest that might be affected by the particular procurement. ii. FEMA considers an “apparent” conflict of interest to exist where an actual conflict does not exist, but where a reasonable person with knowledge of the relevant facts would question the impartiality of the employee, officer, or agent participating in the procurement. c. Gifts. The officers, employees, and agents of the Participating Public Agency nor the Participating Public Agency (“NFE”) must neither solicit nor accept gratuities, favors, or anything of monetary value from contractors or parties to subcontracts. However, NFE’s may set standards for situations in which the financial interest is de minimus, not substantial, or the gift is an unsolicited item of nominal value. 2 C.F.R. § 200.318(c)(1). d. Violations. The NFE’s written standards of conduct must provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the NFE. 2 C.F.R. § 200.318(c)(1). For example, the penalty for a NFE’s employee may be dismissal, and the penalty for a contractor might be the termination of the contract.
Contractor Integrity
A contractor must have a satisfactory record of integrity and business ethics. Contractors that are debarred or suspended, as described in and subject to the debarment and suspension regulations implementing Executive Order 12549, Debarment and Suspension (1986) and Executive Order 12689, Debarment and Suspension (1989) at 2 C.F.R. Part 180 and the Department of Homeland Security’s regulations at 2 C.F.R.
Part 3000 (Non-procurement Debarment and Suspension), must be rejected and cannot receive contract awards at any level.
Notice of Legal Matters Affecting the Federal Government In the event FTA or DOT funding is used by Participating Public Agency, Contractor agrees to:
1) The Contractor agrees that if a current or prospective legal matter that may affect the Federal Government emerges, the Contractor shall promptly notify the Participating Public Agency of the legal matter in accordance with 2 C.F.R. §§ 180.220 and 1200.220.
61 2) The types of legal matters that require notification include, but are not limited to, a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal disagreement in any forum for any reason.
3) The Contractor further agrees to include the above clause in each subcontract, at every tier, financed in whole or in part with Federal assistance provided by the FTA.
Public Policy
A contractor must comply with the public policies of the Federal Government and state, local government, or tribal government. This includes, among other things, past and current compliance with the:
a. Equal opportunity and nondiscrimination laws
b. Five affirmative steps described at 2 C.F.R. § 200.321(b) for all subcontracting under contracts supported by FEMA financial assistance; and FEMA Procurement Guidance June 21, 2016 Page IV - 7 c. Applicable prevailing wage laws, regulations, and executive orders
Affirmative Steps
For any subcontracting opportunities, Contractor must take the following Affirmative steps:
1. Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
2. Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources;
3. Dividing total requirem ents, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises;
4. Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises; and
5. Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce.
Prevailing Wage Requirements
When applicable, the awarded Contractor (s) and any and all subcontractor(s) agree to comply with all laws regarding prevailing wage rates including the Davis -Bacon Act, applicable to this solicitati on and/or Participating Public Agencies. The Participating Public Agency shall notify the Contractor of the applicable pricing/prevailing wage rates and must apply any local wage rates requested. The Contractor and any subcontractor(s) shall comply with the prevailing wage rates set by the Participating Public Agency.
Federal Requirements
If products and services are issued in response to an emergency or disaster recovery the items below, located in this FEMA Special Conditions section of the Federal Funds Certifications, are activated and required when federal funding may be utilized.
2 C.F.R. § 200.326 and 2 C.F.R. Part 200, Appendix II, Required Contract Clauses
1. CONTRACT REMEDIES
Contracts for more than the federal simplified acquisition threshold (SAT), the dollar amount below which an NFE may purchase property or services using small purchase methods, currently set at $250,000 for procurements made on or after June 20, 2018,4 must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms and must provide for sanctions and penalties as appropriate.
62 1.1 Applicability
This contract provision is required for contracts over the SAT, currently set at $250,000 for procurements made on or after June 20, 2018. Although not required for contracts at or below the SAT, FEMA suggests including a remedies provision.
1.2 Additional Considerations
For FEMA’s Assistance to Firefighters Grant (AFG) Program, recipients must include a penalty clause in all contracts for any AFG -funded vehicle, regardless of dollar amount. In that situation, the contract must include a clause addressing that non-delivery by the contract’s specified date or other vendor nonperformance will require a penalty of no less than $100 per day until such time that the vehicle, compliant with the terms of the contract, has been accepted by the recipient. This penalty clause should, however, account for force majeure or acts of God. AFG recipients should refer to the applicable year’s Notice of Funding Opportunity (NOFO) for additional information, which can be accessed at FEMA.gov.
2. TERMINATION FOR CAUSE AND CONVENIENCE
a. Standard. All contracts in excess of $10,000 must address termination for cause and for convenience by the non-Federal entity, including the manner by which it will be effected and the basis for settlement. See 2 C.F.R. Part 200, Appendix II(B).
b. Applicability. This requirement applies to all FEMA grant and cooperative agreement programs.
3. EQUAL EMPLOYMENT OPPORTUNITY
When applicable:
a. Standard. Except as otherwise provided under 41 C.F.R. Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 C.F.R. § 60-1.3 must include the equal opportunity clause provided under 41 C.F.R. § 60- 1.4(b), in accordance with Executive Order 11246, Equal Employment Opportunity (30 Fed. Reg. 12319, 12935, 3 C.F.R. Part, 1964-1965 Comp., p.
339), as amended by Executive Order 11375, Amending Executive Order 11246 Relating to Equal Employment Opportunity, and implementing regulations at 41 C.F.R. Part 60 (Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor). See 2 C.F.R. Part 200, Appendix II(C).
b. Key Definitions.
i. Federally Assisted Construction Contract. The regulation at 41 C.F.R. § 60-
1.3 defines a “federally assisted construction contract” as any agreement or modification thereof between any applicant and a person for construction work which is paid for in whole or in part with funds obtained from the Government or borrowed on the credit of the Government pursuant to any Federal program involving a grant,
63 contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, or any application or modification thereof approved by the Government for a grant, contract, loan, insurance, or guarantee under which the applicant itself participates in the construction work.
ii. Construction Work. The regulation at 41 C.F.R. § 60-1.3 defines “construction work” as the construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.
c. Applicability. This requirement applies to all FEMA grant and cooperative agreement programs.
d. Required Language. The regulation at 41 C.F.R. Part 60-1.4(b) requires the insertion of the following contract clause.
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
64 (4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor
65 debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
4. DAVIS-BACON ACT
a. Standard. All prime construction contracts in excess of $2,000 awarded by non- Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. §§ 3141- 3144 and 3146-3148) as supplemented by Department of Labor regulations at 29 C.F.R. Part 5 (Labor Standards Provisions Applicable t o Contracts Covering Federally Financed and Assisted Construction). See 2 C.F.R. Part 200, Appendix II(D). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week.
b. Applicability. The Davis -Bacon Act applies to the Emergency Management Preparedness Grant Program, Homeland Security Grant Program, Nonprofit Security Grant Program, Tribal Homeland Security Grant Program, Port Security Grant Program, and Transit Security Grant Program.
c. Requirements. If applicable, the non-federal entity must do the following:
i. The non- Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non -Federal entity must report all suspected or reported violations to the Federal awarding agency.
ii. Additionally, pursuant 2 C.F.R. Part 200, Appendix II(D), contracts subject to the Davis-Bacon Act, must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations at 29 C.F.R. Part 3 (Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States). The Copeland Anti- Kickback Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non- Federal entity must report all suspected or reported violations to FEMA.
66 iii. Include a provision for compliance with the Davis -Bacon Act (40 U.S.C. 3141- 3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”).
Suggested Language. The following provides a sample contract clause:
Compliance with the Davis-Bacon Act.
a. All transactions regarding this contract shall be done in compliance with the Davis-Bacon Act (40 U.S.C. 3141- 3144, and 3146-3148) and the requirements of 29 C.F.R. pt. 5 as may be applicable. The contractor shall comply with 40 U.S.C. 3141- 3144, and 3146-3148 and the requirements of 29 C.F.R. pt. 5 as applicable.
b. Contractors are required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor.
c. Additionally, contractors are required to pay wages not less than once a week.
5. COPELAND ANTI-KICKBACK ACT
a. Standard. Recipient and subrecipient contracts must include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). b. Applicability. This requirement applies to all contracts for construction or repair work above $2,000 in situations where the Davis-Bacon Act also applies. It DOES NOT apply to the FEMA Public Assistance Program.
c. Requirements. If applicable, the non- federal entity must include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations at 29 C.F.R. Part 3 (Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States). Each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity must report all suspected or reported violations to FEMA. Additionally, in accordance with the regulation, each contractor and subcontractor must furnish each week a statement with respect to the wages paid each of its employees engaged in work covered by the Copeland Anti -Kickback Act and the Davis Bacon Act during the preceding weekly payroll period. The report shall be delivered by the contractor or subcontractor, within seven days after the regular payment date of the payroll period, to a representative of a Federal or State agency in charge at the site of the building or work.
67 Sample Language. The following provides a sample contract clause:
Compliance with the Copeland “Anti-Kickback” Act.
a. Contractor. The contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of 29 C.F.R. pt. 3 as may be applicable, which are incorporated by reference into this contract.
b. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clause above and such other clauses as FEMA may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts.
The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all of these contract clauses.
c. Breach. A breach of the contract clauses above may be grounds for termination of the contract, and for debarment as a contractor and subcontractor as provided in 29 C.F.R. §5.12.”
6. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
a. Standard. Where applicable (see 40 U.S.C. §§ 3701-3708), all contracts awarded by the non-Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations at 29 C.F.R. Part 5. See 2 C.F.R. Part 200, Appendix II(E). Under 40 U.S.C. § 3702, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Further, no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous.
b. Applicability. This requirement applies to all FEMA contracts awarded by the non- federal entity in excess of $100,000 under grant and cooperative agreement programs that involve the employment of mechanics or laborers. It is applicable to construction work. These requirements do not apply to the purchase of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
c. Suggested Language. The regulation at 29 C.F.R. § 5.5(b) provides contract clause language concerning compliance with the Contract Work Hours and Safety Standards Act. FEMA suggests including the following contract clause:
Compliance with the Contract Work Hours and Safety Standards Act.
(1) Overtime requirements. No contractor or subcontractor contracting for any part of
68 the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one- half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (b)(1) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (b)(1) of this section, in the sum of $27 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (b)(1) of this section
.
(3) Withholding for unpaid wages and liquidated damages. T he Federal agency or loan/grant recipient shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b)(2) of this section.
(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (b)(1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(1) through (4) of this section.
7. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT
a. Standard. If the FEMA award meets the definition of “funding agreement” under 37C.F.R. § 401.2(a) and the non-Federal entity wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the non- Federal entity must comply with the requirements of 37 C.F.R. Part 401 (Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements), and any implementing regulations issued by FEMA. See 2 C.F.R. Part 200, Appendix II(F).
b. Applicability. This requirement applies to “ funding agreements,” but it DOES NOT apply to the Public Assistance, Hazard Mitigation Grant Program, Fire Management Assistance Grant Program, Crisis Counseling Assistance and Training Grant Program, Disaster Case Management Grant Program, and Federal Assistance to Individuals and Households –
69 Other Needs Assistance Grant Program, as FEMA awards under these programs do not meet the definition of “funding agreement.”
c. Funding Agreements Definition. The regulation at 37 C.F.R. § 401.2(a) defines “funding agreement” as any contract, grant, or cooperative agreement entered into between any Federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in part by the Federal government. This term also includes any assignment, s ubstitution of parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a funding agreement as defined in the first sentence of this paragraph.
8. CLEAN AIR ACT AND THE FEDERAL WATER POLLUTION CONTROL ACT
a. Standard. If applicable, contracts must contain a provision that requires the contractor to agree to comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act (42 U.S.C. §§ 7401-7671q.) and the Federal Water Pollution Control Act as amended (33 U.S.C. §§ 1251- 1387). Violations must be reported to FEMA and the Regional Office of the Environmental Protection Agency. See 2 C.F.R. Part 200, Appendix II(G).
b. Applicability. This requirement applies to contracts awarded by a non- federal entity of amounts in excess of $150,000 under a federal grant.
c. Suggested Language. The following provides a sample contract clause.
Clean Air Act
1. The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.
2. The contractor agrees to report each violation to the Participating Public Agency and understands and agrees that the Participating Public Agency will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.
3. The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA.
Federal Water Pollution Control Act
1. The contractor agrees to comply with all applicable standards, orders, or
70 regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq.
2. The contractor agrees to report each violation to the Participating Public Agency and understands and agrees that the Participating Public Agency will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.
3. The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA.
9. DEBARMENT AND SUSPENSION
a. Standard. Non- Federal entities and contractors are subject to the debarment and suspension regulations implementing Executive Order 12549, Debarment and Suspension (1986) and Executive Order 12689, Debarment and Suspension (1989) at 2 C.F.R. Part 180 and the Department of Homeland Security’s regulations at 2 C.F.R. Part 3000 (Non-procurement Debarment and Suspension).
b. Applicability. This requirement applies to all FEMA grant and cooperative agreement programs.
c. Requirements.
i. These regulations restrict awards, subawards, and contracts with certain parties that are debarred, suspended, or otherwise excluded from or ineligible for participation in Federal assistance programs and activities. See 2 C.F.R. Part 200, Appendix II(H); and 2 C.F.R. § 200.213. A contract award must not be made to parties listed in the SAM Exclusions. SAM Exclusions is the list maintained by the General Services Administration that contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
SAM exclusions can be accessed at
www.sam.gov. See 2 C.F.R. § 180.530.
ii. In general, an “excluded” party cannot receive a Federal grant award or a contract within the meaning of a “covered transaction,” to include subawards and subcontracts. This includes parties that receive Federal funding indirectly, such as contractors to recipients and subrecipients. The key to the exclusion is whether there is a “covered transaction,” which is any non -procurement transaction (unless excepted) at either a “primary” or “secondary” tier. Although “covered transactions” do not include contracts awarded by the Federal Government for purposes of the non- procurement common rule and DHS’s implementing regulations, it does include some contracts awarded by recipients and subrecipients.
71 iii. Specifically, a covered transaction includes the following contracts for goods or services:
1. The contract is awarded by a recipient or subrecipient in the amount of at least $25,000.
2. The contract requires the approval of FEMA, regardless of amount.
3. The contract is for federally-required audit services.
4. A subcontract is also a covered transaction if it is awarded by the contractor of a recipient or subrecipient and requires either the approval of FEMA or is in excess of $25,000.
d. Suggested Language. The following provides a debarment and suspension clause. It incorporates an optional method of verifying that contractors are not excluded or disqualified.
Suspension and Debarment
(1) This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such, the contractor is required to verify that none of the contractor’s principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).
(2) The contractor must comply with 2 C.F.R. pt. 180, subpart C and2 C.F.R. pt. 3000, subpart C, and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
(3) This certification is a material representation of fact relied upon by the Participating Public Agency. If it is later determined that the contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the Participating Public Agency, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.
(4) The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.
10. BYRD ANTI-LOBBYING AMENDMENT
a. Standard. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to
72 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 connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. § 1352.
FEMA’s regulation at 44 C.F.R. Part 18 implements the requirements of 31 U.S.C. § 1352 and provides, in Appendix A to Part 18, a copy of the certification that is required to be completed by each entity as described in 31 U.S.C. § 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the Federal awarding agency.
b. Applicability. This requirement applies to all FEMA grant and cooperative agreement programs. Contractors that apply or bid for a contract of $100,000 or more under a federal grant must file the required certification. See 2 C.F.R. Part 200, Appendix II(I); 31 U.S.C. § 1352; and 44 C.F.R. Part 18.
c. Suggested Language.
Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended)
Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds 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 connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352.
Each tier shall also disclose any lobbying with non- Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.
d. Required Certification. If applicable, contractors must sign and submit to the non-federal entity the following certification.
APPENDIX A, 44 C.F.R. PART 18 – CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to in fluence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or
73 cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form- LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
The Contractor, , certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any.
Signature of Contractor’s Authorized Official
Name and Title of Contractor’s Authorized Official
Date
11. PROCUREMENT OF RECOVERED MATERIALS
a. Standard. A non-Federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. See 2 C.F.R. Part 200, Appendix II(J); and 2 C.F.R. § 200.322.
b. Applicability. This requirement applies to all contracts awarded by a non- federal entity under FEMA grant and cooperative agreement programs.
c. Requirements. The requirements of Section 6002 include procuring only items designated in guidelines of the EPA at 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
d. Suggested Language.
i. In the performance of this contract, the Contractor shall make maximum use of products containing recovered materials that are EPA -designated items unless the product cannot be acquired—
1. Competitively within a timeframe providing for compliance with the contract performance schedule;
2. Meeting contract performance requirements; or
3. At a reasonable price.
ii. Information about this requirement, along with the list of EPA - designated items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program.
iii. The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.”
12. DOMESTIC PREFERENCES FOR PROCUREMENTS
As appropriate, and to the extent consistent with law, CONTRACTOR should, to the greatest extent practicable under a federal award, provide a preference for the purchase, acquisition, or use of goods, products or materials produced in the United States. This includes, but is not limited to, iron, aluminum, steel, cement, and other manufactured products.
Applicability For purchases in support of FEMA declarations and awards issued on or after November 12, 2020, all FEMA recipients and subrecipients are required to include in all contracts and purchase orders for work or products a contract provision encouraging domestic preference for procurements.
Domestic Preference for Procurements As appropriate, and to the extent consistent with law, the contractor should, to the greatest extent practicable, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. This includes, but is not limited to iron, aluminum, steel, cement, and other manufactured products. For purposes of this clause: Produced in the United States means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. Manufactured products mean items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.”
75 13. ACCESS TO RECORDS
a. Standard. All recipients, subrecipients, successors, transferees, and assignees must acknowledge and agree to comply with applicable provisions governing DHS access to records, accounts, documents, information, facilities, and staff. Recipients must give DHS/FEMA access to, and the right to examine and copy, records, accounts, and other documents and sources of information related to the federal financial assistance award and permit access to facilities, personnel, and other individuals and information as may be necessary, as required by DHS regulations and other applicable laws or program guidance. See DHS Standard Terms and Conditions: Version 8.1 (2018).
Additionally, Section 1225 of the Disaster Recovery Reform Act of 2018 prohibits FEMA from providing reimbursement to any state, local, tribal, or territorial government, or private non- profit for activities made pursuant to a contract that purports to prohibit audits or internal reviews by the FEMA administrator or Comptroller General.
Access to Records. The following access to records requirements apply to this contract:
i.The Contractor agrees to provide Participating Public Agency, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. ii.The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. iii. The Contractor agrees to provide the FEMA Administrator or his authorized representatives access to construction or other work sites pertaining to the work being completed under the contract.
iv.In compliance with the Disaster Recovery Act of 2018, the Participating Public Agency and the Contractor acknowledge and agree that no language in this contract is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States.
14. CHANGES
a. Standard. To be eligible for FEMA assistance under the non- Federal entity’s FEMA grant or cooperative agreement, the cost of the change, modification, change order, or constructive change must be allowable, allocable, within the scope of its grant or cooperative agreement, and reasonable for the completion of project scope.
b. Applicability. FEMA recommends, therefore, that a non-Federal entity include a changes clause in its contract that describes how, if at all, changes can be made by either party to alter the method, price, or schedule of the work without breaching the contract. The language of the clause may differ depending on the nature of the contract and the end-item procured.
15. DHS SEAL, LOGO, AND FLAGS
a. Standard. Recipients must obtain permission prior to using the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials. See DHS Standard Terms and Conditions: Version 8.1 (2018).
b. Applicability. FEMA recommends that all non-Federal entities place in their contracts a provision that a contractor shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre-approval.
76 c. “The contractor shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre-approval.
16. COMPLIANCE WITH FEDERAL LAW, REGULATIONS, AND EXECUTIVE ORDERS
a. Standard. The recipient and its contractors are required to comply with all Federal laws, regulations, and executive orders.
b. Applicability. FEMA recommends that all non- Federal entities place into their contracts an acknowledgement that FEMA financial assistance will be used to fund the contract along with the requirement that the contractor will comply with all applicable Federal law, regulations, executive orders, and FEMA policies, procedures, and directives.
c. “This is an acknowledgement that FEMA financial assistance will be used to f und all or a portion of the contract. The contractor will comply with all applicable Federal law, regulations, executive orders, FEMA policies, procedures, and directives.”
17. NO OBLIGATION BY FEDERAL GOVERNMENT
a. Standard. FEMA is not a party to any transaction between the recipient and its contractor. FEMA is not subject to any obligations or liable to any party for any matter relating to the contract.
b. Applicability. FEMA recommends that the non- Federal entity include a provision in its contract that states that the Federal Government is not a party to the contract and is not subject to any obligations or liabilities to the non-Federal entity, contractor, or any other party pertaining to any matter resulting from the contract.
c. “The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the non -Federal entity, contractor, or any other party pertaining to any matter resulting from the contract.”
18. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS
a. Standard. Recipients must comply with the requirements of The False Claims Act (31 U.S.C. §§ 3729- 3733) which prohibits the submission of false or
fraudulent claims for payment to the federal government. See DHS Standard Terms and Conditions: Version 8.1 (2018); and 31 U.S.C. §§ 3801- 3812, which details the administrative remedies for false claims and statements made. The non- Federal entity must include a provision in its contract that the contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to its actions pertaining to the contract.
b. Applicability. FEMA recommends that the non- Federal entity include a provision in its contract that the contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to its actions pertaining to the contract.
c. “The Contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the Contractor’s actions pertaining to this contract.”
d. In the event FTA or DOT funding is used by a Participating Public Agency, Contractor further acknowledges U.S. DOT regulations, “Program Fraud Civil Remedies,” 49 CFR Part 31, and apply to its actions pertaining to this Contract. Upon execution of the underlying Contract, Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to me made, pertaining to the underlying Contract or the FTA assisted project for which
77 this Contract Work is being performed.
In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on Contractor to the extent the Federal Government deems appropriate.
Contractor also acknowledges that if it makes, or causes to me made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307 (n)(1) on the Contractor, to the extent the Federal Government deems appropriate.
Contractor agrees to include the above clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions.
Offeror agrees to comply with all terms and conditions outlined in the FEMA Special Conditions section of this solicitation.
Offeror’s Name
: ______________________________________________
Address,
City, State, and Zip Code:
_____________________________________________________________________________
Phone Number: ________________________ Fax Number: ______________________________
Printed Name and Title of Authorized Representative:
____________________________________________________________
Email Address: _____________________________________________
Signature of Authorized Representative: ____________________________________
Date: ________________________________
78 Exhibit G
New Jersey Business Compliance
NEW JERSEY BUSINESS COMPLIANCE
Suppliers intending to do business in the State of New Jersey must comply with policies and procedures required under New Jersey statues. All offerors submitting proposals must complete the following forms specific to the State of New Jersey. Completed forms should be submitted with the offeror’s response to the RFP. Failure to complete the New Jersey packet will impact OMNIA Partners’ ability to promote the Master Agreement in the State of New Jersey.
DOC #1 Ownership Disclosure Form
DOC #2 Non-Collusion Affidavit
DOC #3 Affirmative Action Affidavit
DOC #4 Political Contribution Disclosure Form
DOC #5 Stockholder Disclosure Certification
DOC #6 Disclosure of Investment Activities in Iran
DOC #7 Certification of Non‐Involvement in Prohibited Activities in Russia or Belarus DOC #8 New Jersey Business Registration Certificate
DOC #9 EEOAA Evidence
DOC #10 MacBride Principals Form
New Jersey suppliers are required to comply with the following New Jersey statutes when applicable:
• a ll anti-discrimination laws, including those contained in N.J.S.A. 10:2-1 through N.J.S.A. 10:2-14, N.J.S.A. 10:5-1, and N.J.S.A. 10:5-31 through 10:5-38;
• Prevailing Wage Act, N.J.S.A. 34:11-56.26, for all contracts within the contemplation of the Act;
• Public Works Contractor Registration Act, N.J.S.A. 34:11-56.26; and
• Bid and Performance Security, as required by the applicable municipal or state statutes.
79 DOC #1
STATEMENT OF OWNERSHIP DISCLOSURE
N.J.S.A. 52:25-24.2 (P.L. 1977, c.33, as amended by P.L. 2016, c.43)
This statement shall be completed, certified to, and included with all bid and proposal submissions.
Failure to submit the required information is cause for automatic rejection of the bid or proposal.
Name of Organization:_____________________________________________________
Organization Address:_____________________________________________________
Part I Check the box that represents the type of business organization:
Sole Proprietorship (skip Parts II and III, execute certification in Part IV) Non-Profit Corporation (skip Parts II and III, execute certification in Part IV) For-Profit Corporation (any type) Limited Liability Company (LLC) Partnership Limited Partnership Limited Liability Partnership (LLP) Other (be specific): ______________________________________________
Part II
The list below contains the names and addresses of all stockholders in the corporation who own 10 percent or more of its stock, of any class, or of all individual partners in the partnership who own a 10 percent or greater interest therein, or of all members in the limited liability company who own a 10 percent or greater interest therein, as the case may be. (COMPLETE THE LIST BELOW IN THIS SECTION)
OR
No one stockholder in the corporation owns 10 percent or more of its stock, of any class, or no individual partner in the partnership owns a 10 percent or greater interest therein, or no member in the limited liability company owns a 10 percent or greater interest therein, as the case may be. (SKIP TO PART IV)
(Please attach additional sheets if more space is needed):
Name of Individual or Business Entity Home Address (for Individuals) or Business Address
80 Part III DISCLOSURE OF 10% OR GREATER OWNERSHIP IN THE STOCKHOLDERS,
PARTNERS OR LLC MEMBERS LISTED IN PART II
If a bidder has a direct or indirect parent entity which is publicly traded, and any person holds a 10 percent or greater beneficial interest in the publicly traded parent entity as of the last annual federal Security and Exchange Commission (SEC) or foreign equivalent filing, ownership disclosure can be met by providing links to the website(s) containing the last annual filing(s) with the federal Securities and Exchange Commission (or foreign equivalent) that contain the name and address of each person holding a 10% or greater beneficial interest in the publicly traded parent entity, along with the relevant page numbers of the filing(s) that contain the information on each such person. Attach additional sheets if more space is needed.
Website (URL) containing the last annual SEC (or foreign equivalent) filing Page #’s
Please list the names and addresses of each stockholder, partner or member owning a 10 percent or greater interest in any corresponding corporation, partnership and/or limited liability company (LLC) listed in Part II other than for any publicly traded parent entities referenced above. The disclosure shall be continued until names and addresses of every noncorporate stockholder, and individual partner, and member exceeding the 10 percent ownership criteria established pursuant to N.J.S.A. 52:25-24.2 has been listed. Attach additional sheets if more space is needed.
Stockholder/Partner/Member and
Corresponding Entity Listed in Part II
Home Address (for Individuals) or Business Address
Part IV Certification
I, being duly sworn upon my oath, hereby represent that the foregoing information and any attachments thereto to the best of my knowledge are true and complete. I acknowledge: that I am authorized to execute this certification on behalf of the bidder/proposer; that the <name of contracting unit> is relying on the information contained herein and that I am under a continuing obligation from the date of this certification through the completion of any contracts with <type of contracting unit> to notify the <type of contracting unit> in writing of any changes to the information contained herein; that I am aware that it is a criminal offense to make a false statement or misrepresentation in this certification, and if I do so, I am subject to criminal prosecution under the law and that it will constitute a material breach of my agreement(s) with the, permitting the <type of contracting unit> to declare any contract(s) resulting from this certification void and unenforceable.
Full Name (Print): Title:
Signature: Date:
81 DOC #2
NON-COLLUSION AFFIDAVIT
STANDARD BID DOCUMENT REFERENCE
Reference: VII-H
Name of Form: NON-COLLUSION AFFIDAVIT
Statutory Reference: No specific statutory reference
State Statutory Reference N.J.S.A. 52:34-15
Instructions Reference: Statutory and Other Requirements VII-H Description:
The Owner’s use of this form is optional. It is used to ensure that the bidder has not participated in any collusion with any other bidder or Owner representative or otherwise taken any action in restraint of free and competitive bidding.
82 NON-COLLUSION AFFIDAVIT
State of New Jersey
County of _________________ ss:
I, ________________________________ residing in ___________________________________ (name of affiant) (name of municipality) in the County of _______________________________ and State of _____________________of full age, being duly sworn according to law on my oath depose and say that:
I am _____________________________________ of the firm of _________________________ (title or position) (name of firm)
_____________________________________ the bidder making this Proposal for the bid
entitled ______________________________, and that I executed the said proposal with
(title of bid proposal)
full authority to do so that said bidder has not, directly or indirectly entered into any agreement, participated in any collusion, or otherwise taken any action in restraint of free, competitive bidding in connection with the above named project; and that all statements contained in said proposal and in this affidavit are true and correct, and made with full knowledge that the ______________ _________________________relies upon the truth of the statements contained in said Proposal (name of contracting unit)
and in the statements contained in this affidavit in awarding the contract for the said project.
I further warrant that no person or selling agency has been employed or retained to solicit or secure such contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, except bona fide employees or bona fide established commercial or selling agencies maintained by _________________________________________________.
Subscribed and sworn to
before me this day _____________________________
Signature
________________, 2____ ___________________________________
(Type or print name of affiant under signature)
_____________________________
Notary public of
My Commission expires _______________
(Seal)
83 DOC #3
AFFIRMATIVE ACTION AFFIDAVIT
(P.L. 1975, C.127)
Company Name:
Street:
City, State, Zip Code:
Proposal Certification:
Indicate below company’s compliance with New Jersey Affirmative Action regulations. Company’s proposal will be accepted even if company is not in compliance at this time. No contract and/or purchase order may be issued, however, until all Affirmative Action requirements are met.
Required Affirmative Action Evidence:
Procurement, Professional & Service Contracts (Exhibit A)
Vendors must submit with proposal:
1. A photocopy of a valid letter that the contractor is operating under an existing Federally approved or sanctioned affirmative action program (good for one year from the date of the letter);
OR
2. A photocopy of a Certificate of Employee Information Report approval, issued in accordance with N.J.A.C. 17:27-4;
OR
3. A photocopy of an Employee Information Report (Form AA302) provided by the Division of Contract Compliance and Equal Employment Opportunity in Public Contracts and distributed to the public agency to be completed by the contractor in accordance with N.J.A.C. 17:27-4.
Public Work – Over $50,000 Total Project Cost:
A. No approved Federal or New Jersey Affirmative Action Plan. We will complete Report Form AA201. A project contract ID number will be assigned to your firm upon receipt of the completed Initial Project Workforce Report (AA201) for this contract.
B. Approved Federal or New Jersey Plan – certificate enclosed
I further certify that the statements and information contained herein, are complete and correct to the best of my knowledge and belief.
_________________________ _________________________________ Date Authorized Signature and Title
84 DOC #3, continued
P.L. 1995, c. 127 (N.J.A.C. 17:27)
MANDATORY AFFIRMATIVE ACTION LANGUAGE
PROCUREMENT, PROFESSIONAL AND SERVICE
CONTRACTS
During the performance of this contract, the contractor agrees as follows:
The contractor or subcontractor, where applicable, will not discriminate against any employee or applicant for employment because of age, race, creed, color, national origin, ancestry, marital status, sex, affectional or sexual orientation. The contractor will take affirmative action to ensure that such applicants are recruited and employed, and that employees are treated during employment, without regard to their age, race, creed, color, national origin, ancestry, marital status, sex, affectional or sexual orientation. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applican ts for employment, notices to be provided by the Public Agency Compliance Officer setting forth provisions of this non - discrimination clause.
The contractor or subcontractor, where applicable will, in all solicitations or advertisement for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to age, race, creed, color, national origin, ancestry, marital status, sex, affectional or sexual orientation.
The contractor or subcontractor, where applicable, will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer advising the labor union or workers' representative of the contractor's commitments under this act and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
The contractor or subcontractor, where applicable, agrees to comply with any regulations promulgated by the Treasurer pursuant to P.L. 1975, c. 127, as amended and supplemented from time to time and the Americans with Disabilities Act.
The contractor or subcontractor agrees to attempt in good faith to employ minority and female workers trade consistent with the applicable county employment goal prescribed by N.J.A.C. 17:27-5.2 promulgated by the Treasurer pursuant to P.L. 1975, C.127, as amended and supplemented from time to time or in accordance with a binding determination of the applicable county employment goals determined by the Affirmative Action Office pursuant to N.J.A.C. 17:27 -5.2 promulgated by the Treasurer pursuant to P.L. 1975, C.127, as amended and supplemented from time to time.
The contractor or subcontractor agrees to inform in writing appropriate recruitment agencies in the area, including employment agencies, placement bureaus, colleges, universities, labor unions, that it does not discriminate on the basis of age, creed, color, national origin, ancestry, marital status, sex, affectional or sexual orientation, and that it will discontinue the use of any recruitment agency which engages in direct or indirect discriminatory practices.
The contractor or subcontractor agrees to revise any of it testing procedures, if necessary, to assure that all personnel testing conforms with the principles of job -related testing, as established by the statutes and court decisions of the state of New Jersey and as established by applicable Federal law and applicable Federal court decisions.
The contractor or subcontractor agrees to review all procedures relating to transfer, upgrading, downgrading and lay-off to ensure that all such actions are taken without regard to age, creed, color, national origin, ancestry, marital status, sex, affectional or sexual orientation, and conform with the applicable employment goals, consistent with the statutes and court decisions of the State of New Jersey, and applicable Federal law and applicable Federal court decisions.
The contractor and its subcontractors shall furnish such reports or other documents to the Affirmative Action Office as may be requested by the office from time to time in order to carry out the purposes of these regulations, and public agencies shall furnish such information as may be requested by the Affirmative Action Office for conducting a compliance investigation pursuant
to Subchapter 10 of the Administrative Code (NJAC 17:27).
________________________________________________
Signature of Procurement Agent
85 DOC #4
C. 271 POLITICAL CONTRIBUTION DISCLOSURE FORM
Public Agency Instructions
This page provides guidance to public agencies entering into contracts with business entities that are required to file Political Contribution Disclosure forms with the agency. It is not intended to be provided to contractors. What follows are instructions on the use of form local units can provide to contractors that are required to disclose political contributions pursuant to N.J.S.A. 19:44A-20.26 (P.L. 2005, c. 271, s.2). Additional information on the process is available in Local Finance Notice 2006 -1 (http://www.nj.gov/dca/divisions/dlgs/resources/lfns_2006.html). Please refer back to these instructions for the appropriate links, as the Local Finance Notices include links that are no longer operational.
1. The disclosure is required for all contracts in excess of $17,500 that are not awarded pursuant to a “fair and open” process (N.J.S.A. 19:44A-20.7).
2. Due to the potential length of some contractor submissions, the public agency should consider allowing data to be submitted in electronic form (i.e., spreadsheet, pdf file, etc.). Submissions must be kept with the contract documents or i n an appropriate computer file and be available for public access. The form is worded to accept this alternate submission.
The text should be amended if electronic submission will not be allowed.
3. The submission must be received from the contractor and on file at least 10 days prior to award of the contract. Resolutions of award should reflect that the disclosure has been received and is on file.
4. The contractor must disclose contributions made to candidate and party committees covering a wide range of public agencies, including all public agencies that have elected officials in the county of the public agency, state legislative positions, an d various state entities. The Division of Local Government Services recommends that contractors be provided a list of the affected agencies. This will assist contractors in determining the campaign and political committees of the officials and candidates affected by the disclosure.
a. The Division has prepared model disclosure forms for each county. They can be downloaded from the “County PCD Forms” link on the Pay- to-Play web site at http://www.nj.gov/dca/divisions/dlgs/programs/lpcl.html#12 . They will be
updated from time-to-time as necessary.
b. A public agency using these forms should edit them to properly reflect the correct legislative district (s). As the forms are county-based, they list all legislative districts in each county. Districts that do not represent the public agency should be removed from the lists.
c. Some contractors may find it easier to provide a single list that covers all contributions, regardless of the county. These submissions are appropriate and should be accepted.
d. The form may be used “as-is”, subject to edits as described herein. e. The “Contractor Instructions” sheet is intended to be provided with the form. It is recommended that the Instructions and the form be printed on the same piece of paper. The form notes that the Instructions are printed on the back of the form; where that is not the case, the text should be edited accordingly. f. The form is a Word document and can be edited to meet local needs, and posted for download on web sites, used as an e-mail attachment, or provided as a printed document.
5. It is recommended that the contractor also complete a “Stockholder Disclosure Certification.” This will assist the local unit in its obligation to ensure that contractor did not make any prohibited contributions to the committees listed on the Business Entity Disclosure Certification in the 12 months prior to the contract (See Local Finance Notice 2006 -7 for additional information on this obligation at http://www.nj.gov/dca/divisions/dlgs/resources/lfns_2006.html ). A sample Certification
form is part of this package and the instruction to complete it is included in the Contractor Instructions. NOTE: This section is not applicable to Boards of Education.
86 DOC #4, continued
C. 271 POLITICAL CONTRIBUTION DISCLOSURE FORM
Contractor Instructions
Business entities (contractors) receiving contracts from a public agency that are NOT awarded pursuant to a “fair and open” process (defined at N.J.S.A. 19:44A-20.7) are subject to the provisions of P.L. 2005, c. 271, s.2 ( N.J.S.A. 19:44A-20.26). This law provides that 10 days prior to the award of such a contract, the contractor shall disclose contributions to:
• any State, county, or municipal committee of a political party • any legislative leadership committee*
• any continuing political committee (a.k.a., political action committee) • any candidate committee of a candidate for, or holder of, an elective office:
o of the public entity awarding the contract
o of that county in which that public entity is located o of another public entity within that county
o or of a legislative district in which that public entity is located or, when the public entity is a county, of any legislative district which includes all or part of the county
The disclosure must list reportable contributions to any of the committees that exceed $300 per election cycle that were made during the 12 months prior to award of the contract. See N.J.S.A. 19:44A-8 and 19:44A-16 for more details on reportable contributions.
N.J.S.A. 19:44A-20.26 itemizes the parties from whom contributions must be disclosed when a business entity is not a natural person. This includes the following:
• individuals with an “interest” ownership or control of more than 10% of the profits or assets of a business entity or 10% of the stock in the case of a business entity that is a corporation for profit • all principals, partners, officers, or directors of the business entity or their spouses • any subsidiaries directly or indirectly controlled by the business entity • IRS Code Section 527 New Jersey based organizations, directly or indirectly controlled by the business entity and filing as continuing political committees, (PACs).
When the business entity is a natural person, “a contribution by that person’s spouse or child, residing therewith, shall be deemed to be a contribution by the business entity.” [N.J.S.A. 19:44A-20.26(b)] The contributor must be listed on the disclosure.
Any business entity that fails to comply with the disclosure provisions shall be subject to a fine imposed by ELEC in an amount to be determined by the Commission which may be based upon the amount that the business entity failed to report.
The enclosed list of agencies is provided to assist the contractor in identifying those public agencies whose elected official and/or candidate campaign committees are affected by the disclosure requirement. It is the contractor’s responsibility to id entify the specific committees to which contributions may have been made and need to be disclosed. The disclosed information may exceed the minimum requirement.
The enclosed form, a content -consistent facsimile, or an electronic data file containing the required details (along with a signed cover sheet) may be used as the contractor’s submission and is disclosable to the public under the Open Public Records Act.
The contractor must also complete the attached Stockholder Disclosure Certification. This wi ll assist the agency in meeting its obligations under the law. NOTE: This section does not apply to Board of Education contracts.
* N.J.S.A. 19:44A-3(s): “The term "legislative leadership committee" means a committee established, authorized to be established, or designated by the President of the Senate, the Minority Leader of the Senate, the Speaker of the General Assembly or the Minority Leader of the General Assembly pursuant to section 16 of P.L.1993, c.65 (C.19:44A-
10.1) for the purpose of receiving contributions and making expenditures.”