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REQUEST FOR PROPOSALS

RFP NUMBER:  

DATE ISSUED:

_________ ("Company") is requesting proposals for:

 
 

 OPENING DATE:
 OPENING TIME:   __:__ A.M.
 OPENING LOCATION:
 
 
 
 MANDATORY
 CONFERENCE DATE:
 
 
 
 
 

This RFP consists of 5 Parts and ___ Attachments, totaling ___
consecutively numbered pages.  Supplements may be attached to the RFP with a beginning header page and an ending trailer page.  Please verify that you have a complete copy.
 
 

  PART ONE: EXECUTIVE SUMMARY

Purpose.  ___________________ (the "Company") has hiised this Request for Proposals ("RFP")  ______ to solicit competitive sealed proposals ("Proposals") for its  ________ project (the "Project").  If a suitable offer is made in response to this RFP, the Company may enter into a contract (the "Contract") to have the selected offeror (the "Contractor") perform the Project.  This RFP provides details on what is required to submit a Proposal for the Project, how the Company will evaluate the Proposals, and what will be required of the Contractor in performing the Project.

This RFP also gives the estimated dates for the various events in the submission process, selection process, and Project performance.  While these dates are subject to change, prospective offerors must be prepared to meet them as they currently stand.

Any failure to meet a deadline in the submission or evaluation phases and any objection to the dates for performance in the Project phase may result in the Company refusing to consider the Proposal of the offeror.

Background.

(Optional)

Objectives.  The Company has the following objectives that it wants this Project to fulfill, and it will be the Contractor’s obligation to ensure that the Project meets these objectives:

(Brief statement of the objectives)

Overview of the Project's Scope of Work.  The scope of work for the Project is given in an attachment to this RFP.  This section only gives a summary of that work.  If there is any inconsistency between this summary and the attachment's description of the work, the attachment will govern.

(Brief description of the Project)

Calendar of Events.  The schedule for the Project is given below.  The Company may change this schedule at anytime.  If the Company changes the schedule before the Proposal due date, it will do so through an announcement on Acquisition Management’s web site question and answer area for this RFP.  The web site announcement will be followed by an amendment to this RFP, also available through Acquisition Management’s web site.  After the Proposal due date and before the award of the Contract, the Company will make schedule changes through the RFP amendment process.  And the Company will make changes in the Project schedule after the Contract award through the change order provisions in the general terms and conditions of the Contract.  It is each prospective offeror’s responsibility to check the web site question and answer area for this RFP for current information regarding this RFP and its Calendar of Events.

Dates:

Firm Dates
RFP Issued:
Inquiry Period Begins:
Inquiry Period Ends:
Proposal Due Date: at ___:___ a.m. Eastern Standard Time
Estimated Dates
Issuance of Purchase Order:
Project Work Begins:
Firm Dates:
Delivery Date(s):
Acceptance Testing:

There are references in this RFP to the Proposal due date.  Prospective offerors must assume, unless it is clearly stated to the contrary, that any such reference means the date and time that the Proposals are due and not just the date.  PART TWO:  STRUCTURE OF THIS RFP

Organization.  This RFP is organized into 5 parts and has ___ attachments.  The parts and attachments are listed below.  There also may be one or more supplements to this RFP.  If so, they too are listed below.

Parts

Part 1 Executive Summary
Part 2 Structure of this RFP
Part 3 General Instructions
Part 4 Evaluation of Proposals
Part 5 Contract Award

Attachments

Attachment 1 Project Requirements and Special Provisions
Attachment 2 Requirements for Proposals
Attachment 3 General Terms and Conditions
Attachment 4 The Contract
Attachment 5 Cost Summary
Attachment 6
Attachment 7
Attachment 8

Supplements

Supplement 1 W-9 Form
Supplement 2 PART THREE:  GENERAL INSTRUCTIONS

The following sections provide details on how to get more information about this RFP and how to respond to this RFP.  All responses must be complete and in the prescribed format.

Contacts.  The following person will represent the Company during the Proposal process and the performance of the Project:

Procurement Representative:

(Insert Name, Title, and Address)

During the performance of the Project, a Company representative (the "Project Representative") will represent the Company and be the primary contact for matters relating to the Project.  The Project Representative will be designated in writing after the Contract award.

Internet Inquiries.  Offerors may make Internet inquiries regarding this RFP any time during the inquiry period listed in the Calendar of Events.  To make an Internet inquiry, offerors must use the following process:

- Access the Acquisition Management web site at http://www.___.com;
- Select the "Competitive Document" menu option;
- Select the "Data Processing/Telecommunications" option under the RFP heading;
- Select the "View More Information" option under the corresponding document title and number;
- Select the "Send Question" icon; and
- Complete the electronic mail screen and send.

Responses to inquiries will be made available as described below.  Offerors submitting inquiries will not receive a personalized email response.

Inquiries about a specific portion of this RFP must reference the relevant part of this RFP, the heading for the provision under question, and the page number of the RFP where the provision can be found. The inquiry must contain the name of the prospective offeror’s representative who is responsible for the inquiry, the prospective offeror’s name, and its representative’s business phone number.

Offerors may view inquiries using the following process:

- Access the Acquisition Management web site at http://www.___.gov;
- Select the "Competitive Document" menu option;
- Select the Data Processing/Telecommunications option under the RFP heading;
- Select the "View More Information" option under the corresponding document title; and
- Select the "View Q & A" icon to display all inquiries with responses submitted to date.

When an amendment to this RFP is necessary less than five days before the Proposal due date, the Company may extend the Proposal due date through an announcement on Acquisition Management’s web site question and answer area for this RFP.  Amendment announcements may be provided any time before 5:00 p.m. on ___________________________,_________________________,199 ___. It is the responsibility of each prospective offeror to check for announcements and other current information regarding this RFP.

The Company will try to respond to all inquiries within 48 hours, excluding weekends and Company holidays.  But the Company will not respond to any inquiries received after 8:00 a.m., __________, _____________, 199_____.
 

Communication Restrictions.  From the release of this RFP until a Proposal is selected and the Contract executed, prospective offerors may not communicate with any Company staff concerning this RFP except through the inquiry method.  This does not apply to communication during the evaluation process if the Company initiates the communication.  If an offeror engages in any unauthorized communication, the Company may reject that offeror’s Proposal.

Proposal Submittal.  Each offeror must submit _____ complete, sealed, and signed copies of its Proposal, and each Proposal must be clearly marked "_________________________________ RFP" on the outside of its envelope.

(Alternative Provision)

Each offeror must submit both a technical proposal and a cost proposal as part of its Proposal, and the technical and cost proposals must be submitted in separate, opaque envelopes.  Each offeror must submit ____ complete, sealed, and signed copies of its technical proposal, and each technical proposal must be clearly marked "_________________________________ RFP -- Technical Proposal" on the outside of its envelope.  Additionally, each offeror must submit ____ complete, sealed, and signed copies of its cost proposal, and each cost proposal must be clearly marked "_________________________________ RFP -- Cost Proposal" on the outside of its envelope.

Proposals are due no later than _________________________, at ______:00 ___.m., Eastern Standard Time, the __________________________ day of __________________, 199__.  Proposals must be submitted to:
 
 

The Company may reject any Proposals or unsolicited Proposal amendments that are received after the deadline.  An offeror that mails its Proposal must allow for adequate mailing time to ensure its timely receipt.

The Company may reject late Proposals regardless of the cause for the delay.

Each offeror must carefully review the requirements of this RFP and the contents of its Proposal.  Once opened, Proposals cannot be altered, except as allowed by this RFP.

By submitting a Proposal, the offeror acknowledges that it has read this RFP, understands it, and agrees to be bound by its requirements.  The offeror also agrees that the Contract will be the complete and exclusive statement of the agreement between the Company and the Contractor and will supersede all communications between the parties regarding the Contract’s subject matter.

The Company may reject any Proposal if the offeror takes exception to the terms and conditions of this RFP, fails to comply with the procedure for participating in the RFP process, or the offeror’s Proposal fails to meet any requirement of this RFP.  The Company may also reject any Proposal that it believes is not in its interests to accept and may decide not to do business with any of the offerors responding to this RFP.

All Proposals and other material submitted will become the property of the Company and may be returned only at the Company's option.  Proprietary information should not be included in a Proposal or supporting materials because the Company will have the right to use any materials or ideas submitted in any Proposal without compensation to the offeror.

Waiver of Defects.  The Company may waive any defects in any Proposal or in the submission process followed by an offeror.  But the Company will only do so if it believes that is in the Company's interests.

Multiple or Alternate Proposals.  The Company welcomes multiple Proposals from a single offeror, but the Company requires each such Proposal to be submitted separately from every other Proposal the offeror makes.  Additionally, the offeror must treat every Proposal submitted as a separate and distinct submission and include in each Proposal all materials, information, documentation and other items this RFP requires for a Proposal to be complete and acceptable.  No alternate Proposal may incorporate materials by reference from another Proposal made by the offeror or refer to another Proposal.  The Company will judge each alternate Proposal on its own merits.

Amendments to Proposals.  Amendments or withdrawals of Proposals will be allowed only if the amendment or withdrawal is received before the Proposal due date.   No amendment or withdrawals will be permitted after the due date, except as authorized by this RFP.

Amendments to the RFP.  If the Company decides to revise this RFP before the Proposal due date, amendments will be announced over Acquisition Management’s web site question and answer area for this RFP and will be made available on the web site to all prospective offerors.

Offerors may view Amendments using the following process:

- Access the Acquisition Management web site at http://www.___.gov;
- Select the "Competitive Document" menu option;
- Select the Data Processing/Telecommunications option under the RFP heading;
- Select the "View More Information" option under the corresponding document title; and
- Select the appropriate "Amendment" icon under the "View Amendments" heading to display an Amendment.

After the submission of Proposals, amendments will be distributed only to those offerors whose submissions are under active consideration.  When the Company makes an amendments to the RFP after Proposals have been submitted, the Company will permit offerors to withdraw their Proposals within 10 business days after the amendment is issued.  This withdrawal option will allow any offeror to remove its Proposal from active consideration should the offeror feel that the amendment changes the nature of the transaction so much that the offeror’s Proposal is no longer in its interests.  Alternatively, the Company may allow offerors that have Proposals under active consideration to modify their Proposals in response to the amendment, as described below.

Whenever the Company makes an amendment after the Proposal due date, the Company will tell all offerors whose Proposals are under active consideration whether they have the option to modify their Proposals in response to the amendment.  Any time the Company amends the RFP after the Proposal due date, an offeror will have the option to withdraw its Proposal even if the Company permits modifications to the Proposals.  If the offerors are allowed to modify their Proposals, the Company may limit the nature and scope of the modifications.  Unless otherwise stated in the Company’s notice, modifications and withdrawals must be made in writing and must be submitted within 10 business days after the amendment is issued.  If this RFP provides for a negotiation phase, this procedure will not apply to changes negotiated during that phase.  Withdrawals and modifications must be made in writing and submitted to the Company at the address and in the same manner required for the submission of the original Proposals.  Any modification that is broader in scope than the Company has authorized may be rejected and treated as a withdrawal of the offeror's Proposal.

Proposal Instructions.  Each Proposal must be organized in an indexed binder ordered in the same manner as the response items are ordered in the applicable attachment(s) to this RFP.

The Company wants clear and concise Proposals.  But offerors should take care to completely answer questions and meet the RFP’s requirements.

The requirements for the Proposal's contents and formatting are contained in an attachment to this RFP.

The Company will not be liable for any costs incurred by an offeror in responding to this RFP, regardless of whether the Company awards the Contract through this process, decides not to go forward with the Project, cancels this RFP for any reason, or contracts for the Project through some other process or by issuing another RFP. PART FOUR: EVALUATION OF PROPOSALS

This Section describes the method the Company plans to use to evaluate Proposals.  But the Company is free to change this procedure with or without notice to offerors or otherwise deviate from this methodology.  And the Company may dispose of the evaluation process entirely at any time and for any or no reason.

Rejection of Proposals.  The Company may reject any Proposal with or without cause.  The Company normally will reject any Proposal that is not in the required format, does not address all the requirements of this RFP, or that the Company believes is excessive in price or otherwise not in its interests to consider or to accept.  In addition, the Company may cancel this RFP, reject all the Proposals, and seek to do the Project through a new RFP or other means. This RFP does represent a commitment by the Company to do business with any offeror or the offeror that submits the best Proposal.  And the Company retains complete discretion regarding with whom it decides to do business.

Evaluation of Proposals Generally.  The evaluation process may consist of up to four distinct phases:

1. The Procurement Representative's initial review of all Proposals for defects;
2. The evaluation committee's evaluation of the Proposals;
3. Request for more information (interviews, presentations, and/or demonstrations); and
4. Negotiations.

The evaluation committee may decide whether phases three and four are necessary.  The committee will make this decision before the evaluation process begins.  But the committee has the right to eliminate or add phases three or four at any time in the evaluation process.  The committee also may add or remove sub-phases to phases 2 through 4 at anytime if the committee believes doing so will improve the evaluation process.

Clarifications and Corrections.  During the evaluation process, the Procurement Representative or the evaluation committee may request clarifications from any offeror under active consideration and may give any offeror the opportunity to correct defects in its Proposal.

Initial Review.  The Procurement Representative will review all Proposals for their timeliness, format, and completeness. The Procurement Representative normally rejects any late, incomplete, or incorrectly formatted Proposal, though he or she may waive any defects or allow an offeror to submit a correction.

If a late Proposal is rejected, the Procurement Representative will not open it or evaluate it for format or completeness.

The Procurement Representative will forward all timely, complete, and properly formatted Proposals to an evaluation committee, which the Procurement Representative will chair.

Committee Review of the Proposals.  The evaluation committee will evaluate and numerically score each Proposal that the Procurement Representative has forwarded to it.  The evaluation will be according to the  criteria  contained in this Part of the RFP.  An attachment to this RFP may further refine these criteria, and the committee may break these criteria into components and weight any components of a criterion according to their perceived importance.

The committee may also have the Proposals or portions of them reviewed and evaluated by independent third parties or other Company personnel with technical or professional experience that relates to the Project or to a criterion in the evaluation process.  The committee may also seek reviews of end users of the Project or the advice of other Company committees that have subject matter expertise or an interest in the Project.  In seeking such reviews, evaluations, and advice, the committee will first decide, in writing, how to incorporate the results in the numerical scoring of the Proposals. The committee also may reject any advice it receives from any third parties.

The evaluation will result in a point total being calculated for each Proposal.  Those offerors submitting the highest rated Proposals may be scheduled for the next phase.  The number of Proposals forwarded to the next phase will be within the committee's discretion, but regardless of the number of Proposals selected for the next phase, they normally will be the highest rated Proposals from this phase.

At any time during this phase, the committee may ask an offeror to correct, revise, or clarify any portions of its Proposal.

Proposal Evaluation Criteria.  In the Proposal evaluation phase, the committee will rate the Proposals submitted in response to this RFP based on the following criteria and the following weight assigned to each criterion:

  Criteria      Weight
 
Once the technical merits of a Proposal are considered, as described above, the costs of that Proposal will be considered. But it is within the committee’s discretion to wait to factor in a Proposal’s cost until after any interviews, presentations and discussions. Also, before evaluating the technical merits of the Proposals, the committee may do an initial review of costs to determine if any Proposals should be rejected because of excessive cost. And the committee may reconsider the excessiveness of any Proposal’s cost at any time in the evaluation process.

The committee will then divide the offeror’s total not-to-exceed fixed price for the Project by the Proposal’s totaled score based on the points received from the evaluation of the Proposal’s technical merits. One or more of the Proposals will then be selected for further consideration in the next phase of the evaluation process. The Proposal(s) selected to be considered in the next phase normally will be the highest-ranking Proposal(s) based on this analysis, but the committee is free to move any Proposal to the next phase. Alternatively, if there is to be no more phases because the committee feels they are unnecessary or inappropriate, the highest-ranking Proposal will be awarded the Contract.

If the committee finds that one or more Proposals should be given further consideration, the committee may select one or more Proposals to move to the next phase.  The committee may alternatively choose to bypass any or all subsequent phases and make an award based solely on the evaluation phase.

This RFP asks for responses and submissions from offerors, most of which represent components of the above criteria.  While each criterion represents only a part of the total basis for a decision to award the Contract to an offeror, a failure by an offeror to make a required submission or meet a mandatory requirement will normally result in a rejection of that offeror's Proposal.  The value assigned above to each criterion is only a value used to determine which Proposal is the most advantageous to the Company in relation to the other Proposals that the Company received.  It is not a basis for determining the importance of meeting any requirement to participate in the Proposal process.

If the committee does not receive any Proposal that meets all the mandatory requirements, the committee may cancel this RFP.  Alternatively, if the committee believes it is in the Company's interest, the committee may continue to consider quality Proposals despite their failure to meet all the mandatory requirements.

Financial Ability.  Part of the Proposal evaluation criteria is the qualifications of the offeror, which includes as a component the offeror's financial ability to perform the Contract.  This RFP may expressly require the submission of audited financial statements from all offerors.  But if it does not make this an express requirement, the evaluation committee may still insist that an offeror submit audited financial statements for the past 3 years if the committee is concerned that an offeror may not have the financial ability to carry out the Contract.

In evaluating an offeror's financial ability, the weight the committee assigns, if any, to that financial ability will depend on whether the offeror's financial position is adequate or inadequate.  That is, if the offeror's financial ability is adequate, the value assigned to the offeror's relative financial ability in relation to other offerors may or may not be significant, depending on the nature of the Project.  But if the evaluation committee believes the offeror's financial ability is not adequate, that decision will be a fatal one for the offeror's Proposal, and the committee may reject the Proposal despite its other merits.

Interviews, Demonstrations, and Presentations.  The Proposal evaluation committee may require some offerors to interview with the committee, make a presentation about their Proposal, and/or demonstrate their products or services.  Such presentations, demonstrations, and interviews provide an offeror with an opportunity to clarify its Proposals and to ensure a mutual understanding of the Proposal's content.  The presentations, demonstrations, and interviews will be scheduled at the convenience and discretion of the evaluation committee and will be held in room _______, of the __________________________________________ building, _______ floor, ____________________________, ___________________, ______ _____.

 The evaluation committee may record any presentations, demonstrations, and interviews.

The evaluation committee normally will not numerically rank interviews, demonstrations, and presentations.  Rather, each committee member may decide to revise his or her existing Proposal evaluations based on the interviews, demonstrations, and/or presentations.

Contract Negotiations.  The final phase of the evaluation process is contract negotiations.  Contract negotiations will be held in room ______, of the ____________________________  building, _______ floor, ________________________, ___________________, ________.   Negotiations will be scheduled at the convenience of the committee.  The selected offeror(s) must negotiate in good faith.

Negotiations may be conducted with any offeror who submits a competitive Proposal, but the committee may limit discussions to specific aspects of the RFP.  Any clarifications, corrections, or negotiated revisions that may occur during the negotiations phase will be reduced to writing and incorporated in the RFP or the offeror’s Proposal, as appropriate. Any offeror whose response continues to be competitive will be accorded fair and equal treatment with respect to any clarification, correction, or revision of the RFP and will be given the opportunity to negotiate revisions to its Proposal based on the amended RFP.

But should the evaluation process have resulted in a top-ranked Proposal, the committee may limit negotiations to only that offeror and not hold negotiations with any lower-ranking offeror.  If negotiations are unsuccessful with the top-ranked offeror, the committee may then go down the line of remaining offerors, according to rank, and negotiate with the next highest-ranking offeror.  Lower-ranking offerors do not have a right to participate in negotiations conducted in such a manner.

If the committee decides to negotiate with all the remaining offerors, or decides that negotiations with the top-ranked offeror are not satisfactory and negotiates with one or more of the lower-ranking offerors, the committee will then determine if an adjustment in the ranking of the remaining offerors is appropriate based on the negotiations.   The Contract award, if any, then normally will be based on the final ranking of offerors, as adjusted, unless the Company determines its in its interest to do otherwise.

Following negotiations, the committee may set a date and time for the submission of best and final Proposals by the remaining offeror(s) with which the committee conducted negotiations. If negotiations were limited and all changes were reduced to signed writings during negotiations, the committee need not require the submissions of best and final Proposals.

If best and final Proposals are required, they may be submitted only once, unless the committee makes a written determination that it is in the Company's interest to conduct additional negotiations.  In such cases, the committee may require another submission of best and final Proposals. Otherwise, discussion of or changes in the best and final Proposals will not be allowed. If an offeror does not submit a best and final Proposal, the offeror's previous Proposal will be considered the offeror's best and final Proposal.

It is entirely within the discretion of the committee whether to permit negotiations.  An offeror must not submit a Proposal assuming that there will be an opportunity to negotiate any aspect of the Proposal.  The committee is free to limit negotiations to particular aspects of any Proposal, to limit the offerors with whom the committee wants to negotiate, and to dispense with negotiations entirely.

Failure to Negotiate.  If an offeror fails to provide the necessary information for negotiations in a timely manner, or fails to negotiate in good faith, the Company may terminate negotiations with that offeror and collect on the offeror's bid bond, if a bid bond was required in order to respond to this RFP.
  PART FIVE: AWARD OF THE CONTRACT

Contract Award.  The Company plans to award the Contract for the Project on ______________. _____________, 199___, if the Company decides the Project is in its best interests and has not changed the award date.

In awarding the Contract, the Company will issue a letter of intent to the selected Contractor. The letter will include two copies of the execution page of the Contract.  The Contractor will have ___ business days to return two originally signed copies of the execution page of the Contract to the Company.  After the Company receives these two signed Contract execution pages, the Company's duly authorized representative will sign both copies and return one to the Contractor if the Company plans to move forward with the Project.  But the Contract will not be binding on the Company until the Company issues a purchase order and all other prerequisites identified in the Contract have occurred.

The Company expects the Contractor to commence work within ___ working days after the Company issues a purchase order under the Contract.

Contract.  If this RFP results in a Contract award, the Contract will consist of this RFP, written amendments to this RFP, the Contractor's Proposal, and written, authorized amendments to the Contractor's Proposal.  It will also include any materials incorporated by reference in the above documents and any purchase orders and change orders issued under the Contract.  The form of the Contract is attached as a 1 page attachment to this RFP, but it incorporates all the documents identified above.  The general terms and conditions for the Contract are contained in another attachment to this RFP.  If there are conflicting provisions between the documents that make up the Contract, the order of preference for the documents is as follows:

1. This RFP, as amended;
2. The documents and materials incorporated by reference in the RFP;
3. The Contractor's Proposal, as amended; and
4. The documents and materials incorporated by reference in the Contractor's Proposal.

Notwithstanding the order listed above, purchase orders, change orders, and amendments issued after the Contract is executed may expressly change the provisions of the Contract.  If they do so expressly, then the most recent of them will take precedence over anything else that is part of the Contract.
  ATTACHMENT ONE: PROJECT REQUIREMENTS AND SPECIAL PROVISIONS PART ONE:  PROJECT REQUIREMENTS

This section describes the Project and what the Contractor must do to get the job done.  It also describes what the Contractor must deliver as part of the completed Project (the "Deliverables").  And it gives a detailed description of the Projects schedule.

Scope of Work.
 

(Describe the work the Contractor will do for the Company.  The objectives we want to accomplish through this work should also be described.)

Milestone, Delivery and Completion Dates.

(Identify any dates on which the Company expects the Contractor to meet obligations, deliver things to the Company, and complete the Project.)

Deliverables.

(Describe what it is that the Company expects the Contractor to deliver as a result of the work involved in the Project.  Be sure to describe in sufficient detail any specifications for things such as software or equipment.)

Performance Testing.

(If the offeror is going to deliver something that is complex, such as computer systems or software, and we want to make sure that it works like it should, a performance test should be done.  In this section, we should simply indicate that "A performance test will (will not) be done." The next section and the General Terms and Conditions describe the procedure and criteria for testing.)

Performance Criteria.

(If we indicate above that a performance test will be done, the Contract provides for a thirty-day  test based on the criteria outlined in this Attachment.  We have the option of listing multiple parts of the Project as being subject to acceptance testing or testing the whole Project.  Performance criteria here should reflect the option we have chosen.)

Special Maintenance Standards.

(If the maintenance sections of the General Terms and Conditions are not sufficient, special maintenance requirements and standards should be listed here.  If there are none, simply indicate "In accordance with the applicable Contract provisions".)
 

The Contractor’s Fee Structure.

(Identify the type of payment(s) that will be made to the Contractor.  The Contractor’s Fee may be a lump sum due at the end of the Project, or it may be made in a series of payments based on the Contractor meeting certain milestones or making certain deliveries.  The Contractor’s Fee may also be based on periods of performance or time actually spent.  If so, it may be a daily, weekly, monthly, or annual Fee that is not tied to actual time spent doing work.  It may also be an hourly rate(s) for time actually spent working.)

Project Reports.

(The General Terms and Conditions provide for Project reports from the Contractor every two weeks.  If fewer or more frequent reports are in order, such should be stated here.)

Reimbursable Expenses.

(Identify any expenses for which the Company will reimburse the Contractor.  Insert "None." if there are no reimbursable expenses.)

Bill to Address.

(List the full mailing address to which the Contractor should send its invoice(s).)
 

Permits the Company Will Obtain.

(List any permits or official authorizations we will be responsible for getting.  The General Terms and Conditions Attachment provides that any needed permits are the responsibility of the Contractor unless we indicate otherwise in this section.)

  ATTACHMENT TWO: REQUIREMENTS FOR PROPOSALS

(Most of these provisions are optional and should be used only if they are relevant to the particular RFP.  Other provisions should be added where there is a special need that these provisions do not address.)

Proposal Format.  Each Proposal must include sufficient data to allow the evaluation committee to verify the total cost for the Project and all of the offeror's claims of meeting the RFP's requirements.  Each Proposal must respond to every request for information in this attachment whether the request requires a simple "yes" or "no" or requires a detailed explanation.  Simply repeating the RFP's requirement and agreeing to comply will be an unacceptable response and may cause the Proposal to be rejected.

These instructions describe the required format for a responsive Proposal.  The offeror may include any additional information it believes is relevant.  An identifiable tab sheet must precede each section of a Proposal, and each Proposal must follow the format outlined below.  All pages, except pre-printed technical inserts, must be sequentially numbered.

Any material deviation from the format outlined below may result in a rejection of the non-conforming Proposal.

Each Proposal must contain the following:

 Cover Letter
 Contractor Profile
 Contract Performance
 Development and Support Capabilities
 Staffing Plan
 Personnel Profile Summaries
 Work Plan
 ______________________
 ______________________
 ______________________
 ______________________
 Project Schedule
 Support Requirements
 Cost Summary
 Time Commitment
 Proof of Insurance
 W-9 Form

Cover Letter.  The cover letter must be in the form of a standard business letter and must be signed by an individual authorized to legally bind the offeror.  The cover letter will provide an executive summary of the solution the offeror plans to provide.  The letter must also have the following:

a. A statement regarding the offeror's legal structure (e.g., an ____ corporation), Federal tax
    identification number, and principal place of business;
b. A list of the people who prepared the Proposal, including their titles;
c. The name, phone number, and fax number of a contact person who has authority to answer
    questions regarding the Proposal;
d. A list of all subcontractors, if any, that the offeror will use on the Project if the offeror is selected
    to do the work;
e. For each proposed subcontractor, the offeror must attach a letter from the subcontractor, signed
    by someone authorized to legally bind the subcontractor, with the following included in the letter:
 

1. The subcontractor's legal status, tax identification number, and principal place of business
    address;
2. The name and phone number of someone who is authorized to legally bind the
    subcontractor to contractual obligations;
3. A description of the work the subcontractor will do;
4. A commitment to do the work if the offeror is selected;
5. A statement that the subcontractor has read and understood the RFP and will comply with
    the requirements of the RFP; and
6. A statement whether the subcontractor is a certified minority business enterprise.

f.  A statement that the offeror's proposed solution for the Project meets all the requirements of this
    RFP.

Profile.  Each Proposal must include a profile of the offeror's relevant experience working on projects similar to this Project.  The profile must also include the offeror's legal name, address, and telephone number; home office location; date established; ownership (such as public firm, partnership, or subsidiary); firm leadership (such as corporate officers or partners); number of employees; number of employees engaged in work directly related to the Project; and any other background information that will help the evaluation committee gauge the ability of the offeror to successfully complete the Project.

The offeror must also include __ references for which the offeror has successfully provided services on projects that were similar in their nature, size, and scope to the Project.  These references must be from projects that were completed within the past ____ years.  This RFP includes a reference form as an attachment.  The offeror must use this form and fill it out completely for each reference.

Each reference must be willing to discuss the offeror's performance on the reference project with the evaluation committee.

Contract Performance.  The offeror must provide the following information for this section for the past 7 years:

a. Whether the offeror has had a contract terminated for default or cause.  If so, the offeror must
    submit full details, including the other party's name, address, and telephone number.
b. Whether the offeror has been assessed any damages in excess of $__________, including
    liquidated damages, under any of its existing or past contracts with any organization (including any
    governmental entity).  If so, the offeror must provide complete details, including the name of the
    other organization, the reason for the damages, and the amount for each incident.
c. Whether the offeror was the subject of any governmental action limiting the right of the offeror to
    do business with that entity or any other governmental entity.
d. Whether trading in the stock of the company has ever been suspended with the date(s) and
    explanation(s).
e. Whether the offeror, any officer of the offeror, or any owner of a 20% interest or greater in the
    offeror has filed for bankruptcy, reorganization, a debt arrangement, moratorium, or any
    proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding.
f. Whether the offeror, any officer of the offeror, or any owner with a 20% interest or greater in the
    offeror has been convicted of a felony or is currently under indictment on any felony charge.

If the answer to any item in (a) through (f) is affirmative, the offeror must provide complete details about the matter.  While an affirmative answer to any of these items will not automatically disqualify an offeror from consideration, at the sole discretion of the evaluation committee, such an answer and a review of the background details may result in a rejection of the offeror’s Proposal.  The committee will make this decision based on its determination of the seriousness of the matter, the matter’s possible impact on the offeror’s performance on the Project, and the best interests of the Company.

Development Capabilities.  Each offeror must describe its capability, capacity, and plans for developing the Deliverables, as well as describe contingency plans if the primary plan is not able to meet the Project's needs.

Staffing Plan.  The offeror will provide a staffing plan that identifies all personnel required to do the Project.  The plan must have the following information:

• A matrix matching each team member to the staffing requirements in this RFP.
• A contingency plan that shows the ability to add more staff if needed to meet the Project's due
   date(s).
• A discussion of the offeror's ability to provide qualified replacement personnel.

Personnel Profile Summaries.  Each Proposal must include a profile for each member of the proposed Project team.  The profile form is included in this RFP as an attachment.  Offerors must duplicate this form and complete it for each team member.  If additional space is needed for completion of the form for any team member, the offeror must use the back of the form.  Each form must be completely filled out using the format given in the attachment to this RFP.

All candidates proposed must meet the mandatory technical experience for the candidate's position and be identified by name.  If any candidate does not meet the minimum requirements for the position the candidate has been proposed to fill, the offeror's Proposal may be rejected as non-responsive. The various sections of the form are described below.
 

a) References.  Provide 3 references for which the proposed candidate has successfully demonstrated meeting the requirements of the RFP on a project of similar size and scope in the past 5 years.  The name of the person to be contacted, phone number, company, address, brief description of project size and complexity, and dates (month and year) of employment must be given for each reference. The candidate must provide a list of professional references that can attest to his/her specific qualifications.  The references given should be a person the candidate reported to and not a co-worker.

If less than 3 references are provided, the offeror must include information as to why less than 3 references were provided.  The Company may disqualify the proposal if less than 3 references are given.

b) Education and Training. This section must be completed to list the education and training of the proposed candidates and will demonstrate, in detail, the proposed candidate’s ability to properly execute the Contract based on the relevance of the education and training to the requirements of the RFP.

c)  Mandatory Experience and Qualifications. This section must be completed to show how the candidate meets the mandatory experience.  For each reference the following information must be provided:

Candidate’s Name.

Contact Information. The contact name, phone number, company name, and address must be completely filled out.  If the primary contact can not be reached, an alternate contact name in the company, address, and phone number must be provided in lieu of the primary contact.
Dates of Employment. Must be completed to show the length of time the candidate performed the technical experience being described, not the length of time the candidate worked for the company.  The offeror must complete these dates with a beginning month and year and an ending month and year.

Description of the Related Service Provided. The Company does not assume that since the technical requirement is provided at the top of the page that all descriptions on that page relate to that requirement.  Contractors must reiterate the technical experience being described, including the capacity in which the experience was performed and the role of the candidate in the project.  It is the Contractors’ responsibility to customize the description to clearly substantiate the candidate’s qualification.

Project Experience. The candidate’s project experience must be listed separately and completely every time it is referenced, regardless of whether it is on the same or different pages of the form.
 

d) Desirable Experience and Qualifications. This section must be completed to show how the candidate meets the desirable experience.

e) Resume.  The candidate’s resume must follow the completed form and show how the candidate meets the qualifications listed for the position in the RFP.

Work Plan.  The offeror must fully describe its approach, methods, and specific work steps for doing the work on this Project and producing the Deliverables.  The Company encourages responses that demonstrate a thorough understanding of the nature of the Project and what the Contractor must do to get the Project done well.  The offeror must also provide a complete and detailed description of the way it will do the Project that addresses the areas of concern identified below.

The Company seeks insightful responses that describe proven, state-of-the-art methods.  Recommended solutions should demonstrate that the offeror will be prepared to quickly undertake and successfully complete the required tasks.  The offeror's work plan should clearly and specifically identify personnel assignments and the number of hours by individual for each task.

Engineering Methodology.  The offeror must outline the proposed engineering methodology.  Methodologies that rely on customizing existing solutions are welcomed.  Specifically, the offeror will describe the purpose, objectives, approach, methods, and specific work steps to complete the engineering, or design, portion of the Project.  The offeror will also address potential problem areas, technical risks, recommended solutions to the problem areas, and any assumptions used in developing those solutions.

The offeror must provide a detailed description of the purpose, objectives, approach, method, and specific work steps to complete the Project areas listed below.  The offeror must also address potential problem areas, recommended solutions to the problem areas, and any assumptions used in developing those solutions.

System Requirements Affirmation.  In this section, the offeror must fully describe how the offeror will use systems analysis techniques to affirm the requirements identified for the Project.

Design.  In this section, the offeror must fully describe its proposed design for the Deliverables and integration methodology, objectives, approach, methods, tools, techniques, and specific work steps for completing the technical design process.  The offeror must depict the design in sufficient detail to allow the committee to verify that the design meets all the requirements.  The offeror must fully describe how the design will be represented; that is through written specifications, design diagrams, a system prototype, and/or CASE tool software.

At a minimum, the offeror's design approach should include the following design phases:

(List Phases)

Development.  In this section, the offeror must describe the offeror's development methodology, objectives, approach, methods, tools, techniques, and specific work steps for completing the development process.  Of particular importance are the offeror's testing strategies for unit, systems, user acceptance, volume, and regression testing.  The offeror must also fully describe the Deliverables.

System Installation and Operation.  The offeror must fully describe the offeror's methodology, objectives, approach, methods, tools, techniques and specific work steps for installing the new system and maintaining its operation throughout the warranty period.  The offeror's approach to user and systems documentation, training, and installation and maintenance plans must also be fully described.

Project Management Methodology.  The offeror must describe the approach, method(s), and specific work steps it plans to use to complete the Project.  After award, the Management Plan will become the offeror's master plan to fulfill the Contract.  It will incorporate other plans required by this RFP.

The Management Plan must be as complete as possible at the time of submission.  It must:
 

a. Describe the offeror's proposed organization(s) and management structure responsible for
    fulfilling the Contract's requirements.
b. Describe the methodologies, processes, and procedures the offeror's proposed
    organization(s) will follow to develop the Project.
c. Define the milestone review processes (e.g. critical design review), and describe how
    communication and status review will be conducted between all parties.

The offeror must also describe the Project reporting procedures required for the successful completion of the Project.  And the offeror must address potential problem areas, recommended solutions to the problem areas, and any assumptions used in developing those solutions.

If the offeror chooses to use any subcontractors, this part of the offeror's Proposal must describe its approach to effectively managing its subcontractors.  The Company considers all proposed MBE's to be subcontractors.

Equipment and System Elements.  The offeror must specifically identify all equipment the Company will need for the Project during the installation, customization, implementation, and ongoing operations.  The offeror's Proposal must include the proposed manufacturer's name and model for all items of equipment items.  The offeror must also include any equipment that will be required for the implementation and ongoing operation of the Project that is not otherwise specified in this RFP.

All the specifications given in this RFP for equipment and other system elements are minimum system requirements.  The offeror may include features, equipment or other elements in excess of the minimum but must clearly identify them as such.   All elements of the proposed solution must meet the mandatory technical requirements for the system.  If any element of the proposed solution does not meet the minimum requirements, the offeror's Proposal may be rejected as non-responsive.

Schedule.  The offeror will provide a detailed Project schedule for all Project milestones and Deliverables.  The Project schedule should be delivered as a Gantt chart, showing all major Project tasks on a week-by-week schedule to serve as the basis for managing the Project.  The schedule should clearly demonstrate how the Project will become fully operational by the delivery date.  The offeror must give dates for when the Deliverable(s)will be completed.  The offeror will also identify and describe all risk factors associated with the forecasted milestone schedule.

Support Requirements.  The offeror must describe the support it wants from the Company to accomplish the Project other than what the Company has offered elsewhere in this RFP.  Specifically, the offeror should address the following:

 • Nature and extent of Company support required;
 • Assistance from Company staff and the experience/qualification level required; and
 • Other support requirements.

The Company may not be able or willing to provide the additional support the offeror lists in this part of its Proposal.  The offeror must therefore indicate whether its request for additional support is a requirement for its performance.  If any part of the list is a requirement, the Company may reject the offeror's Proposal if the Company is unwilling or unable to meet the requirements.

Cost Summary.  This RFP includes a  Cost Summary Form  provided as an attachment.  Offerors may not reformat this form.  Each offeror must complete the cost summary sheet in the exact format provided.  Any reformatting may cause the Company to reject the offeror's Proposal.

The offeror's total cost for the entire Project must be broken down for each Deliverable, and the total must be represented as the not-to-exceed fixed price.

The Company will not be liable for any costs the offeror does not identify in its Proposal.

Time Commitment.  The offeror must submit a statement and chart that clearly indicate the time commitment of the proposed Project team, including the Project Manager, to this Project and other projects during the term of the Contract.  The offeror must also include a statement indicating to what extent, if any, the Project Manager may be used on other projects during the term of the Contract.  The evaluation committee may reject any Proposal that commits the proposed Project Manager to other projects during the term of the Project if the committee believes that doing so will be detrimental to the offeror’s performance.

Bid Bond.  Each offeror must include a bid bond in its Proposal.  The bid bond must be payable immediately if the offeror is selected to negotiate and fails to negotiate in good faith or, on award of the Contract, fails to deliver a fully executed Contract within ____ business days after the Contract award.  The amount of the bid bond must be _____% of the offeror's fixed, firm fee for the Project.  If the offeror is proposing alternatives, the percentage must be to the highest cost alternative.  Proposals unaccompanied by a proper bid bond will be rejected.

Performance Bond.  The Contractor must provide a performance bond.  The amount of the performance bond must be equal to at least ____% of the total amount of the Contract and must remain in place through the term of the Contract. Each offeror must enclose a letter of commitment from a bonding company for the performance bond with its Proposal.

Conflict of Interest.  Each Proposal must include a statement indicating whether the offeror or any people that may work on the Project through the offeror have a possible conflict of interest (e.g., employed by the state of _______, etc.) and, if so, the nature of that conflict.  The Company has the right to reject a Proposal in which a conflict is disclosed or cancel the Contract if any interest is later discovered that could give the appearance of a conflict.

Position Requirements.  One of the criteria on which the Company may base the award of the Contract is the quality of the offeror's Project team.  Switching personnel after the award will not be accepted without due consideration.

The offeror must propose a Project team that collectively meets all the requirements in this RFP, as demonstrated through the Personnel Profile Summary Forms.  Additionally, each team member may have mandatory requirements listed in this RFP that the team member must individually meet.

Minimum Financial Requirements.  In order to be considered responsive, an offeror must provide its audited annual financial statements for the past 3 years.  If the offeror's most recently completed fiscal year is not yet audited, the 3 years just before the most recent fiscal year will be acceptable.

Payment Address.  The offeror must give the address to which payments to the offeror will be sent.

Pre-existing Materials.  The offeror must list any Pre-existing Materials that the offeror owns that will be included in a Deliverable and for which the offeror wants a proprietary notice if the Deliverable is copied or distributed.  For example, the offeror may have standard user interfaces or standard shells that it incorporates in what is otherwise custom software. (See the Ownership of the Work section of the General Terms and Conditions.)  The evaluation committee may reject any Proposal that includes existing materials for a custom solution if the committee believes that such is not appropriate or desirable for the Project.

Commercial Materials.  Here the offeror must list any commercial and proprietary materials that the offeror will deliver that are easily copied (e.g., software) and in which the Company will be granted less than full ownership.  Generally, these will be from third parties and readily available in the open market.  Patented parts of equipment need not be listed since they are not readily copied.  If the Company will be expected to sign a license for the Commercial Material, the license agreement must be attached.  If the Company finds any provisions of the license agreement objectionable for any reason and cannot or does not negotiate an acceptable solution with the third party, regardless of the reason and in the Company's sole discretion, then the offeror's Proposal will be rejected.  If the Company is not going to sign a license, but there will be limits on the Company's use of the Commercial Materials different from the standard license in the General Terms and Conditions, then the unique scope of license needs to be spelled out here.   Unless otherwise provided elsewhere in this RFP, proposing to use Commercial Materials in a custom solution may, in the committee’s sole discretion, be a basis for rejection of the offeror’s Proposal if the committee believes that such is not appropriate or desirable for the Project.  Any deviation from the standard license, warranty, and other related terms in the General Terms section for Commercial Material will likely result in a rejection of the Proposal, in the committee’s sole discretion.

Warranty for Commercial Software.  If the offeror plans to provide a Deliverable that contains Commercial Software with warranty terms that differ from the warranty terms in the General Terms and Conditions attachment, then the scope of warranty must to be spelled out here.  This is so even if the Company will not be required to sign a license for the software.  BUT PLEASE NOTE that any deviation from the standard warranty in the General Terms section of this RFP for Commercial Material will likely result in a rejection of the Proposal.

Proof of Insurance.  In this section, the offeror must provide the certificate of insurance required by the General Terms & Conditions.

W-9 Form.  The offeror must complete the attached W-9 form in its entirety.  At least 1 original W-9 form must be submitted.  All other copies of a Proposal may contain copies of the W-9 form.  Please indicate on the outside of the binder which Proposal contains the original signature.
 

  ATTACHMENT THREE:  GENERAL TERMS AND CONDITIONS  
  PART ONE:  PERFORMANCE AND PAYMENT

Statement of Work.  The RFP and the Contractor's Proposal (Collectively referred to as the "RFP") are a part of this Contract and describe the work (the "Project") the Contractor will do and any materials the Contractor will deliver (the "Deliverables") under this Contract.  The Contractor will do the Project in a professional, timely, and efficient manner and will provide the Deliverables in a proper fashion.  The Contractor will also furnish its own support staff necessary for the satisfactory performance of the Project.

The Contractor will consult with the appropriate Company representatives and others necessary to ensure a thorough understanding of the Project and satisfactory performance.  The Company may give instructions to or make requests of the Contractor relating to the Project, and the Contractor will comply with those instructions and fulfill those requests in a timely and professional manner.  Those instructions and requests will be for the sole purpose of ensuring satisfactory completion of the Project and will not amend or alter the scope of the Project.

Term.  Unless this Contract is terminated or expires without renewal, it will remain in effect until the Project is completed to the satisfaction of the Company and the Contractor is paid.  But the current General Assembly cannot commit a future General Assembly to an expenditure.  Termination or expiration of this Contract will not limit the Contractor’s continuing obligations with respect to Deliverables that the Company paid for before termination or limit the Company’s rights in such.

The Project has a completion date that is identified in the RFP.  It may also have several dates for delivery of Deliverables or reaching certain milestones in the Project.  If so, those dates are also contained in the RFP.  The Contractor must make those deliveries, meet those milestones, and complete the Project within the times the RFP requires.  If the Contractor does not meet those dates, the Contractor will be in default, and the Company may terminate this Contract under the termination provision contained below.  But the Company may also have certain obligations to meet.  Those obligations, if any, are also listed in the RFP.  If the Contractor’s failure to meet the delivery, milestone, or completion dates in the RFP is due to the Company’s failure to meet its own obligations in a timely fashion, then the Contractor will not be in default, and the delivery, milestone, and completion dates effected by the Company’s failure to perform will be extended by the same amount of time as the Company’s delay.  The Contractor may not rely on this provision unless the Contractor has given the Company written notice of the Company’s failure to meet its obligations, with reasonable specificity, soon after the Company’s delay has begun and while the Company’s delay is happening.  The extension of the Contractor’s performance time will be the Contractor’s only remedy for the Company’s delay.

The Company seeks a complete Project.  Any incidental items omitted in the RFP will be provided as part of the Contractor’s not-to-exceed fixed price.  The Contractor must fully identify, describe, and document all systems that are delivered as a part of the Project.  All hardware, software, supplies, and other required components (such as documentation, conversion, training, and maintenance) for the Project to be complete and useful to the Company are included in the Project and the not-to-exceed fixed price.

Compensation.  In consideration of the Contractor's promises and satisfactory performance, the Company will pay the Contractor the amount(s) identified in the RFP (the "Fee"), plus any other expenses identified as reimbursable in the RFP.  But in no event will payments under this Contract exceed the "not-to-exceed" amount in the RFP without the prior, written approval of the Company and, when required, the Company's Controlling Board and any other source of funding.  The Contractor's right to the Fee is contingent on the complete and satisfactory performance of the Project or, in the case of milestone payments or periodic payments of an hourly, daily, weekly, monthly, or annual rate, all relevant parts of the Project tied to the applicable milestone or period.  Payment of the Fee is also contingent on the Contractor delivering a proper invoice and any other documents required by the RFP.  An invoice must comply with the Company's then-current policies regarding invoices and their submission.  The Company will notify the Contractor in writing within 15 business days after it receives a defective invoice of any defect and provide the information necessary to correct the defect.

The Contractor will send all invoices under this Contract to the "bill to" address in the RFP or in the applicable purchase order.

The Company will pay the Contractor interest on any late payment based on the then-current lowest short term Federal Treasury Bill interest rate.  If the Company disputes a payment for anything covered by an invoice, within 15 business days after receipt of that invoice, the Company will notify the Contractor, in writing, stating the grounds for the dispute.  The Company may then deduct the disputed amount from its payment as a non-exclusive remedy.  In addition, the Company will consult with the Contractor as early as reasonably possible about the nature of the dispute and the amount of payment affected.  When the Contractor has resolved the disputed matter to the Company's satisfaction, the Company will pay the disputed amount within 30 business days after the matter is resolved.

If the Company has already paid the Contractor on an invoice but later disputes the amount covered by the invoice, and if the Contractor fails to correct the problem within 30 calendar days after written notice, the Contractor will reimburse the Company for that amount at the end of the 30 calendar days as a non-exclusive remedy for the Company.  On written request from the Contractor, the Company will provide reasonable assistance in determining the nature of the problem by giving the Contractor reasonable access to the Company’s facilities and any information the Company has regarding the problem.

Reimbursable Expenses.  The Company will pay all reimbursable expenses identified in the RFP, if any, in accordance with the terms in the RFP.  The Contractor will assume all expenses that it incurs in the performance of this Contract that are not identified as reimbursable in the RFP.

In making any reimbursable expenditures, the Contractor will always comply with the more restrictive of its own, then-current internal policies for making such expenditures or with the Company's then-current policies.  All reimbursable travel will require the advance written approval of the Company's Representative.  All reimbursable expenses will be billed monthly and paid by the Company within 30 business days of receiving the Contractor's invoice.

Employment Taxes.  Each party will be solely responsible for reporting, withholding and paying all employment related taxes, payments and withholdings for its own personnel.  This includes such items as Federal, state and local income taxes, social security, unemployment and disability deductions, withholdings, and payments.  It also includes such items as any interest and penalties not disputed with the appropriate taxing authority. All people the Contractor provides to the Company to perform work on the Project will be the employees of the Contractor and not employees of the Company.

Sales, Use, Excise, and Property Taxes.  The Company is exempt from any sales, use, excise, and property tax.  To the extent sales, use, excise, or any similar tax is imposed on the Contractor in connection with the Project, such will be the sole and exclusive responsibility of the Contractor.  And the Contractor will pay such taxes, together with any interest and penalties not disputed with the appropriate taxing authority, whether they are imposed at the time the services are rendered or a later time.

  PART TWO:  PROJECT & CONTRACT ADMINISTRATION

Related Contracts.  The Contractor warrants that the Contractor has not and will not enter into any contracts without written approval of the Company to perform substantially identical services for the Company such that the Project duplicates the work done or to be done under the other contracts.
 
 Subcontracting.  Only the Contractor will perform the Project, and the Contractor will not enter into subcontracts for the Project without written approval from the Company.  But the Contractor will not need the Company's written approval to subcontract for the purchase of commercial goods that are required for satisfactory completion of the Project.  All subcontracts will be at the sole expense of the Contractor unless expressly stated otherwise in the RFP.

If the Company authorizes the use of subcontractors, that fact will be noted in the RFP or in a subsequent, written document.  The Company's approval of the use of subcontractors does not mean that the Company will pay for them.  The Contractor will be solely responsible for payment of its subcontractor and any claims of subcontractors for any failure of the Contractor or any of its other subcontractors to meet the performance schedule or performance specifications for the Project in a timely and professional manner.  The Contractor will hold the Company harmless for and will indemnify the Company against any such claims.

The Contractor will assume responsibility for all Deliverables whether it, a subcontractor, or third-party manufacturer produces them in whole or in part.  Further, the Company will consider the Contractor to be the sole point of contact with regard to contractual matters, including payment of all charges resulting from the Contract.  And the Contractor will be fully responsible for any default by a subcontractor, just as if the Contractor itself had defaulted.

If the Contractor uses any subcontractors, each subcontractor must have a written agreement with the Contractor.  That written agreement must incorporate this Contract by reference.  The agreement must also pass through to the subcontractor all provisions of this Contract that would be fully effective only if both the subcontractor and the Contractor are bound by them.  Among such provisions are the limitations on the Contractor's remedies, the insurance requirements, record keeping obligations, and audit rights.  Some sections of this Contract may limit the need to pass through their requirements to subcontracts to avoid placing cumbersome obligations on minor subcontractors.  But this exception is applicable only to sections that expressly provide an exclusion for small-dollar subcontracts.  Should the Contractor fail to pass through any provisions of this Contract to one of its subcontractors and the failure damages the Company in any way, the Contractor will indemnify the Company for the damage.

Record Keeping.  The Contractor will keep all financial records in accordance with generally accepted accounting procedures consistently applied.  The Contractor will file documentation to support each action under this Contract in a manner allowing it to be readily located.  And the Contractor will keep all Project-related records and documents at its principal place of business or at its office where the work was performed.

The Contractor will keep a separate account for the Project (the "Project Account").  All payments made from the Project Account will be only for obligations incurred in the performance of this Contract and will be supported by contracts, invoices, vouchers, and any other data needed to audit and verify the payments.  All payments from the Project Account will be for obligations incurred only after the effective date of this Contract unless the Company has given specific written authorization for making prior payments from the Project Account.

Audits.  During the term of this Contract and for 3 years after the payment of the Contractor’s Fee, on reasonable notice and during customary business hours, the Company may audit the Contractor’s records and other materials that relate to the Project.  This audit right will also apply to the Company’s duly authorized representatives and any person or organization providing financial support for the Project.

Unless it is impracticable to do so, all records related to this Contract must be kept in a single location, either at the Contractor’s principle place of business or its place of business where the work was done.  If this is not practical, the Contractor will assume the cost of collecting, organizing, and relocating the records and any technology need to access the records to the Contractor’s office nearest _______ whenever the Company or anyone else with audit rights requests access to the Contractor’s Project records.  The Contractor will do so with all due speed, not to exceed 5 business days.

If any audit reveals any material deviation from the Project’s specifications, any misrepresentation, or any overcharge to the Company, the Company will be entitled to recover damages, as well as the cost of the audit.

For each subcontract in excess of $25,000.00, the Contractor will require its subcontractors to agree to the requirements of this section and of the record-keeping section.  Subcontracts with smaller amounts involved need not meet this requirement.  But the Contractor may not artificially break up contracts with its subcontractors to take advantage of this exclusion.

Equal Employment Opportunity.  During the Project, the Contractor will not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, disability, age, or Vietnam-era veteran status ("Protected Status").  The Contractor will ensure that applicants for employment and employees are treated without regard to their Protected Status.

The Contractor agrees to post notices with the provisions of this section in conspicuous places that are available to employees and applicants and to state in all solicitations and advertisements for employees that it is an equal opportunity employer.

Insurance.  The Contractor will provide the following insurance coverage at its own expense throughout the term of this Contract:

(a)    Workers' compensation insurance, as required by ______ law, and, if some of the Project will
        be done outside _______, the laws of the appropriate state(s) where work on the Project will
        be done.
(b)    The Contractor will also maintain employer's liability insurance with at least a $1,000,000.00
        limit.
(c)    Personal injury, bodily injury, and property damage liability insurance, including automobile
        coverage, with personal injury and bodily injury of not less than $1,000,000.00 combined
        single limit, and property damage of at least $500,000.00 for any one occurrence.

The Contractor also must furnish a certificate of insurance to the Company for the required coverage evidencing insurance from an insurance carrier, or carriers, authorized to do business in _____.  The certificate must be in a form that is reasonably satisfactory to the Company as to the contents of the policies and the quality of the insurance carriers.  The certificate must also:

(a)     Provide 30 days’ notice to the Company before cancellation.
(b)     Have an endorsement providing that the insurance is primary insurance and over any coverage
         held by the Company.
(c)     List the Company is an additional insured.

Bond.  If the RFP provides a dollar amount for a performance bond, the Contractor will provide the Company with a performance bond in that amount within 5 business days after execution of this Contract.  The performance bond will serve as an assurance that the Contractor and all of its subcontractors will comply with all the requirements of this Contract.  The performance bond will also indemnify the Company against all direct damages it suffers from any failure of the Contractor to properly perform.  The bond must be issued by a company authorized by ______'s Department of Insurance to do business in ________.  Failure of the Contractor to provide the performance bond on or before the date it is required to be delivered to the Company will result in a breach of this Contract without a cure period and termination or suspension (or ultimately both) of this Contract for cause.

The bond will remain in effect for the duration of this Contract and any extensions of this Contract's initial term.

The terms of the bond must reflect the terms of this section, or the Company will reject it and treat the failure of conformance as a failure by the Contractor to deliver the bond in a timely fashion.

The Contractor will be solely liable for all the costs associated with getting and keeping the performance bond in place.

Company Personnel.  During the term of this Contract and for 1 year after completion of the Project, the Contractor will not hire or otherwise contract for the services of any state employee involved with the Project.

Replacement Personnel.  If the RFP contains the names of specific people who will work on the Project, then the quality and professional credentials of those people were material factors in the Company's decision to enter into this Contract.  Therefore, the Contractor will use all commercially reasonable efforts to ensure the continued availability of those people.  Also, the Contractor will not remove those people from the Project without the prior, written consent of the Company, except as provided below.

The Contractor may remove a person listed in the RFP from the Project if doing so is necessary for legal or disciplinary reasons.  But the Contractor must make a reasonable effort to give the Company 30 calendar days' prior, written notice of the removal.

The Contractor must have qualified replacement people available to replace any people listed by name in the RFP.  When the removal of a listed person is permitted under this Section, or if a person becomes unavailable, the Contractor will submit the resumes for 2 replacement people for each person removed or who otherwise becomes unavailable.  The Contractor will submit the 2 resumes, along with such other information as the Company may reasonably request, within 5 business days after the decision to remove a person is made or the unavailability of a listed person becomes known to the Contractor.

The Company will select 1 of the 2 proposed replacements or will reject both of them within 10 business days after the Contractor has submitted the proposed replacements to the Company.  The Company may reject the proposed replacements for any legal reason(s).  Should the Company reject both replacement candidates due to their failure to meet the minimum qualifications identified in the RFP, or should the Contractor fail to provide the notice required under this Section or fail to provide 2 qualified replacement candidates for each removed or unavailable person, the Contractor will be in default.  Further, the cure period for default specified elsewhere in this Contract will not apply to a default under this paragraph.  In the event of such a default, the Company will have the right to terminate this Contract and to have the damages specified elsewhere in this Contract for termination due to default.

The Company may determine that proposed replacement candidates meet the minimum qualifications of this Contract and still substantially reduce the value the Company perceived it would receive through the work of the original individual(s) the Contractor proposed and on whose credentials the Company decided to enter into this Contract.  Therefore, the Company will have the right to reject any candidate that the Company determines will provide it with diminished value.

Should the Company reject both proposed candidates for any legal reason other than their failure to meet the minimum qualifications identified in the RFP, then such rejection will be deemed a termination for convenience.

The Company has an interest in providing a healthy and safe environment for its employees and guests at its facilities.  The Company also has an interest in ensuring, and right to ensure, that its operations are carried out in an efficient, professional, legal, and secure manner.  The Company, therefore, will have the right to require the Contractor to remove any individual working on the Project if the Company determines that any such individual has or may interfere with the Company's interests identified above.  In such a case, the request for removal will be treated as a case in which an individual providing services under this Contract has become unavailable, and the Contractor will follow the procedures identified above for replacing unavailable people.  This provision applies to people engaged by the Contractor's subcontractors if they are listed as key people on the RFP.

Suspension and Termination.  The Company may terminate this Contract if the Contractor defaults in meeting its obligations under this Contract and fails to cure its default within the time allowed by this Contract, or if a petition in bankruptcy (or similar proceeding) has been filed by or against the Contractor.  The Company may also terminate this Contract if the Contractor violates any law or regulation in doing the Project, or if it appears to the Company that the Contractor's performance is substantially endangered through no fault of the Company.  In any such case, the termination will be for cause, and the Company's rights and remedies will be those identified below for termination for cause.

On written notice, the Contractor will have 30 calendar days cure any breach of its obligations under this Contract, provided the breach is curable.  If the Contractor fails to cure the breach within 30 calendar days after written notice or if the breach is not one that is curable, the Company will have the right to terminate this Contract.  The Company may also terminate this Contract in the case of breaches that are cured within 30 calendar days but are persistent.  "Persistent" in this context means that the Company has notified the Contractor in writing of the Contractor's failure to meet any of its obligations 3 times.  After the third notice, the Company may terminate this Contract without a cure period if the Contractor again fails to meet any obligation.  The 3 notices do not have to relate to the same obligation or type of failure.  Some provisions of this Contract may provide for a shorter cure period than 30 calendar days or for no cure period at all.  Those provisions will prevail over this one.  If a particular section does not state what the cure period will be, this provision will govern.

The Company may also terminate this Contract for its convenience and without cause.

The notice of termination, whether for cause or without cause, will be effective as soon as the Contractor receives it.  Upon receipt of the notice of termination, the Contractor will immediately cease all work on the Project and take all steps necessary to minimize any costs the Contractor will incur related to this Contract.  The Contractor will also immediately prepare a report and deliver it to the Company.  The report must detail the work completed at the date of termination, the percentage of the Project's completion, any costs incurred in doing the Project to that date, and any Deliverables completed or partially completed but not delivered to the Company at the time of termination.  The Contractor will also deliver all the completed and partially completed Deliverables to the Company with its report.  But, if delivery in that manner would not be in the Company's interest, then the Contractor will propose a suitable alternative form of delivery.

If the Company terminates this Contract for cause, it will be entitled to cover for the Project by using another contractor on such commercially reasonable terms as it and the covering contractor may agree.  The Contractor will be liable to the Company for all costs related to covering for the Project to the extent that such costs, when combined with payments already made to the Contractor for the Project before termination, exceed the costs that the Company would have incurred under this Contract.  The Contractor will also be liable for any other direct damages resulting from its breach of this Contract or other action leading to termination for cause.

If the termination is for the convenience of the Company, the Contractor will be entitled to compensation for any work on the Project that the Contractor has performed before the termination.  Such compensation will be the Contractor's exclusive remedy in the case of termination for convenience and will be available to the Contractor only once the Contractor has submitted a proper invoice for such, with the invoice reflecting the amount determined to be owing to the Contractor by the Company.  The Company will make that determination based on the lesser of the percentage of the Project completed or the hours of work performed in relation to the estimated total hours required to perform the entire Project.

The Company will have the option of suspending rather than terminating the Project where the Company believes that doing so would better serve its interests.  In the event of a suspension for the convenience of the Company, the Contractor will be entitled to receive payment for the work performed before the suspension.  In the case of suspension of the Project rather than termination for cause, the Contractor will not be entitled to any compensation for any work performed.  If the Company reinstates the Project after suspension for cause, rather than terminating this Contract after the suspension, the Contractor may be entitled to compensation for work performed before the suspension, less any damage to the Company resulting from the Contractor’s breach of this Contract or other fault.  Any amount due for work before or after the suspension for cause will be offset by any damage to the Company from the default or other event giving rise to the suspension.

In the case of a suspension for the Company's convenience, the amount of compensation due to the Contractor for work performed before the suspension will be determined in the same manner as provided in this section for termination for the Company's convenience.  The Contractor will not be entitled to compensation for any costs associated with a suspension for the Company’s convenience.  No payment under this provision will be made to the Contractor until the Contractor submits a proper invoice.

Any notice of suspension, whether with or without cause, will be effective immediately on the Contractor's receipt of the notice.  And the Contractor will prepare a report concerning the Project just as is required by this Section in the case of termination.  After suspension of the Project, the Contractor will perform no work without the consent of the Company and will resume work only on written notice from the Company to do so.  In any case of suspension, the Company retains its right to terminate this Contract rather than to continue the suspension or resume the Project.  If the suspension is for the convenience of the Company, then termination of the Contract will be a termination for convenience.  If the suspension is with cause, the termination will also be for cause.

The Company will not suspend the Project for its convenience more than once during the term of this Contract, and any suspension for the Company’s convenience will not continue for more than 30 calendar days.  If the Contractor does not receive notice to resume or terminate the Project within the 30-day period, then this Contract will terminate automatically for the Company’s convenience at the end of the 30 calendar day period.

Any default by the Contractor or one of its subcontractors will be treated as a default by the Contractor and all of its subcontractors.  The Contractor will be solely responsible for satisfying any claims of its subcontractors for any suspension or termination and will indemnify the Company for any liability to them.  Each subcontractor will hold the Company harmless for any damage caused to them from a suspension or termination.  They will look solely to the Contractor for any compensation to which they may be entitled.

Representatives.  The Company's representative under this Contract will be the person identified on the RFP or a subsequent notice to the Contractor as the "Project Representative."  The Project Representative will review all reports made in the performance of the Project by the Contractor, will conduct all liaison with the Contractor, and will accept or reject the Deliverables and the complete Project.  The Project Representative may assign a manager responsibilities for individual aspects of the Project to act as the Project Representative for those individual portions of the Project.

The Contractor’s Project Manager under this Contract will be the person identified on the RFP as the "Project Manager."  The Project Manager will conduct all liaison with the Company under this Contract.  Either party, upon written notice to the other party, may designate another representative.  But the Project Manager may not be replaced without the approval of the Company if s/he is identified in the RFP as a key individual on the Project.

Project Responsibilities.  The Company will be responsible for providing only those things expressly identified, if any, in the RFP.  If the Company has agreed to provide facilities or equipment, the Contractor, by signing this Contract, warrants that the Contractor has either inspected the facilities and/or equipment or has voluntarily waived an inspection and will work with the equipment and/or facilities on an "as is" basis.

Normal working hours on Company property are Monday through Friday, except for Company holidays, from 8:00 a.m. to 5:00 p.m., Eastern Standard Time, with a 1 hour for lunch.   The Contractor must plan to work within these time constraints.

The Contractor will assume the lead in the areas of management, design, and development of the Project.  The Contractor will coordinate the successful execution of the Project and direct all Project activities on a day to day basis, with the advice and consent of the Project Representative.  The Contractor will be responsible for all communications regarding the progress of the Project and will discuss with the Project Representative any issues, recommendations, and decisions related to the Project.

If the Project, or parts of it, require installation on the Company's property, the Company will provide the Contractor with reasonable access to the installation site for the installation and any site preparation that is needed.  After the installation is complete, the Contractor will complete an installation letter and secure the signature of Project Representative certifying that installation is complete and the Project, or applicable portion of it, is operational.  The letter will describe the nature, date, and location of the installation, as well as the date it was certified as installed and operational by the Project Representative.

The Contractor will provide a written report to the Project Representative at least as often as the end of every other week throughout the term of the Project, or as otherwise provided in the RFP.  The reports will include the number of hours worked by task and a percentage-to-completion rate, if applicable, as well as any other special requirements in the RFP.

Unless otherwise provided in the RFP, the Contractor will be responsible for obtaining all official permits, approvals, and similar authorizations required by any local, state, or Federal agency for the Project.

Changes.  The Company may make reasonable changes, within the general scope of the Project, in any one or more of the following: (I) Project tasks or subtasks; (ii) time or place of delivery; or (iii) period of performance.  The Company will do so by issuing a written order under this Contract describing the nature of the change ("Change Order").  Additionally, if the Company provides directions or makes requests of the Contractor without a change order, and the Contractor reasonably believes the directions or requests are outside the specifications for the Project, the Contractor will have the right to request a Change Order from the Company.  Scope of work changes will be managed as follows: pricing will be provided from the Contractor to the Company.  The Company will execute a Change Order once it and the Contractor have agreed on the description of and specifications for the change as well as any equitable adjustments that need to be made in the Contractor's Fee or the performance schedule for the Project.  Within 5 business days after receiving the Change Order, the Contractor will sign it to signify agreement with it.

If a change causes an increase in the cost of, or the time required for, the performance of the Project, the Contractor will notify the Company in writing and request an equitable adjustment in the Contractor’s Fee, the delivery schedule, or both before the Contractor signs the Change Order.  If the Contractor claims an adjustment under this section in connection with a change to the Project not described in a written Change Order, the Contractor must notify the Company of the claim within 5 business days after the Contractor is notified of the change and before work on the change begins.  Otherwise, the Contractor will have waived the claim.  In no event will the Company be responsible for any increase in the Fee or revision in any delivery schedule unless the relevant change was specifically ordered in writing by the Company and the Contractor has complied with the requirements of this section.  Provided the Company has complied with the procedure for Change Orders in this section, nothing in this clause will excuse the Contractor from proceeding with performance of the Project, as changed.

If the Contractor seeks an equitable adjustment in its Fee, the Contractor must submit its actual costs for materials needed for the change (or estimated amount if the precise amount of materials cannot be determined) and an estimate of the hours of labor required to do the work under the Change Order.  The hours of labor will be broken down by employee position, and the actual hourly pay rate for each employee involved in the change must be provided.  The total amount of the equitable adjustment for the Change Order will then be made based on the actual cost of materials (or estimated materials) and actual rate for each person doing the labor (based on the estimated hours of work required to do the change).  Labor rates will be increased by 25% to cover benefits and taxes.  The equitable adjustment for the Change Order will then be set based on this amount, plus 15% to cover overhead and profit.  This amount will be the not-to-exceed amount of the Change Order.  However, if the change involves removing a requirement from the Project or replacing one part of the Project with the change, the Company will get a credit for the work no longer required under the original scope of the Project.  The credit will be calculated in the same manner as the Contractor's Fee for the change, and the not-to-exceed amount will be reduced by this credit.

The Contractor will be responsible for coordinating changes with its subcontractors and adjusting their compensation and performance schedule.  The Company will not pay any subcontractor for the Change Order.  If a subcontractor will perform any work under a Change Order, that work must be included in the Contractor's not-to-exceed amount and calculated in the same manner as the Contractor's equitable adjustment for the portion of the work the Contractor will perform.  The Contractor will not receive an overhead percentage for work a subcontractor will do under a Change Order.

Excusable Delay.  Neither party will be liable for any delay in its performance that arises from causes beyond its control and without its negligence or fault.  The delayed party will notify the other promptly of any material delay in performance and will specify in writing the proposed revised performance date as soon as practicable after notice of delay.  In the event of any such excusable delay, the date of performance or of delivery will be extended for a period equal to the time lost by reason of the excusable delay.  The delayed party must also describe the cause of the delay and what steps it is taking to remove the cause.  The delayed party may not rely on a claim of excusable delay to avoid liability for a delay if the delayed party has not take commercially reasonable steps to mitigate or avoid the delay.  Things that are controllable by the Contractor's subcontractors will be considered controllable by the Contractor, except for third-party manufacturers supplying commercial items and over whom Contractor has no legal control.

Independent Status of the Contractor.  The parties will be acting as independent contractors.  The partners, employees, officers, and agents ("Personnel") of one party, in the performance of this Contract, will act only in the capacity of representatives of that party and not as Personnel of the other party and will not be deemed for any purpose to be Personnel of the other.  Each party assumes full responsibility for the actions of its Personnel while they are performing services pursuant to this Contract and will be solely responsible for paying its Personnel (including withholding of and/or paying income taxes and social security, workers’ compensation, disability benefits and the like).  Neither party will commit, nor be authorized to commit, the other party in any manner.  The Contractor's subcontractors will be considered the agents of the Contractor for purposes of this Contract.
  PART THREE:  OWNERSHIP & HANDLING OF INTELLECTUAL PROPERTY & CONFIDENTIAL INFORMATION

Confidentiality.  The Company may disclose to the Contractor written material or oral or other information that the Company treats as confidential ("Confidential Information"). Title to the Confidential Information and all related materials and documentation the Company deliverers to the Contractor will remain with the Company.  The Contractor must treat such Confidential Information as secret if it is so marked, otherwise identified as such, or when, by its very nature, it deals with matters that, if generally known, would be damaging to the best interests of the Company, other contractors or potential contractors with the Company, or individuals or organizations about whom the Company keeps information.  By way of example, information should be treated as confidential if it includes any proprietary documentation, materials, flow charts, codes, software, computer instructions, techniques, models, information, diagrams, know-how, trade secrets, data, business records, or marketing information.

The Contractor agrees not to disclose any Confidential Information to third parties and to use it solely to do the Project.  The Contractor will restrict circulation of Confidential Information within its organization and then only to people in the Contractor's organization that have a need to know the Confidential Information to do the Project.  The Contractor will be liable for the disclosure of such information whether the disclosure is intentional, negligent, or accidental, unless otherwise provided below.

The Contractor will not be liable for any unintentional disclosure of Confidential Information that results despite the Contractor's exercise of at least the same degree of care as it normally takes to safeguard its own secrets, except when the Contractor's procedures are not reasonable given the nature of the Confidential Information or when the disclosure nevertheless results in liability to the Company.

The Contractor will not incorporate any portion of any Confidential Information into any work or product, other than a Deliverable, and will have no proprietary interest in any of the Confidential Information.  Furthermore, the Contractor will cause all of its employees who have access to any Confidential Information to execute a confidentiality agreement incorporating the obligations in this section.

The Contractor's obligation to maintain the confidentiality of the Confidential Information will not apply where such: (1) was already in the Contractor's possession before disclosure by the Company, and such was received by the Contractor without obligation of confidence; (2) is independently developed by the Contractor; (3) is or becomes publicly available without breach of this Contract; (4) is rightfully received by the Contractor from a third party without an obligation of confidence; (5) is disclosed by the Contractor with the written consent of the Company; or (6) is released in accordance with a valid order of a court or governmental agency, provided that the Contractor (a) notifies the Company of such order immediately upon receipt of the order and (b) makes a reasonable effort to obtain a protective order from the issuing court or agency limiting disclosure and use of the Confidential Information solely for the purposes intended to be served by the original order of production.  The Contractor will return all originals of any Confidential Information and destroy any copies it has made on termination or expiration of this Contract.

The Contractor may disclose Confidential Information to its subcontractors on a need-to-know basis, but they will be obligated to the requirements of this section.

Ownership of Deliverables.  All custom work done by the Contractor and covered by this Contract will be treated as "work for hire" on behalf of the Company, with all rights, title, and interest in all intellectual property that come into existence through the Contractor's custom work being assigned to the Company.  Additionally, the Contractor waives any author rights and similar retained interests in custom-developed material. The Contractor will provide the Company with all assistance reasonably needed to vest such rights of ownership in the Company.  But the Contractor will retain ownership of all tools, methods, techniques, standards, and other development procedures, as well as generic and preexisting shells, subroutines and similar material incorporated in any custom Deliverable ("Pre-existing Materials") if the Contractor provides the non-exclusive license described in the next paragraph.

The Contractor may grant the Company a worldwide, non-exclusive, royalty-free license to use, modify, sell, and otherwise distribute all Pre-existing Materials that are incorporated in any custom-developed Deliverable rather than grant the Company ownership of the Pre-existing Materials. The Contractor will not include in any custom Deliverable any intellectual property unless such has been created under this Contract or qualifies as Pre-existing Material.  If the Contractor wants to incorporate any Pre-existing Materials in a custom Deliverable, the Contractor must first disclose this and seek the Company's approval for doing so in advance.  On the request of the Contractor, the Company will incorporate any proprietary notice the Contractor may reasonably want for any Pre-existing Materials included in a custom Deliverable in all copies the Company makes of that Deliverable.

Subject to the limitations and obligations of the Company with respect to Pre-existing Materials, the Company may make all custom Deliverables available to the general public without any proprietary notices of any kind.

License in Commercial Material.  As used in this section, "Commercial Material" means anything that has been developed at private expense by the Contractor or a third party, commercially available in the marketplace, subject to intellectual property rights, and readily copied through duplication on magnetic media, paper, or other media.  Examples include written reports, books, pictures, videos, movies, computer programs, and computer source code and documentation.

Any Commercial Material that the Contractor intends to deliver as a Deliverable must have the scope of the license granted in such material disclosed in the RFP or as an attachment referenced in the RFP, if that scope of license is different from the scope of license contained in this section for Commercial Materials.

Except for Commercial Material that is software ("Commercial Software"), if the Commercial Material is copyrighted and published material, then the Company will have the rights permitted under the Federal copyright laws for each copy of the Commercial Material delivered to it by the Contractor.

Except for Commercial Software, if the Commercial Material is patented, then the Company will have the rights permitted under the Federal patent laws for each copy of the Commercial Material delivered to it by the Contractor.

Except for Commercial Software, if the Commercial Material consists of trade secrets, then the Company will treat the material as confidential. In this regard, the Company will assume all obligations with respect to the Commercial Material that the Contractor assumes under the Confidentiality section of this Contract with respect to Company secrets.  Otherwise, the Company will have the same rights and duties permitted under the Federal copyright laws for each copy of the Commercial Material delivered to it by the Contractor, whether or not the material is copyrighted when delivered to the Company.

For Commercial Software, the Company will have the rights in items (1) through (8) of this section with respect to the software.  The Company will not use any Commercial Software except as provided in items (1) through (8) of this section or as expressly stated otherwise in this Contract. The Commercial Software may be:

(1)    Used or copied for use in or with the computer or computers for which it was acquired,
        including use at any Company installation to which such computer or computers may be
        transferred;
(2)    Used or copied for use in or with a backup computer for disaster recovery and disaster
        recovery testing purposes or if any computer for which it was acquired is inoperative;
(3)    Reproduced for safekeeping (archives) or backup purposes;
(4)    Modified, adapted, or combined with other computer software, but the modified, combined,
        or adapted portions of the derivative software incorporating any of the Commercial Software
        will be subject to same restrictions set forth in this Contract;
(5)    Disclosed to and reproduced for use on behalf of the Company by support service contractors
        or their subcontractors, subject to the same restrictions set forth in this Contract; and
(6)    Used or copied for use in or transferred to a replacement computer.

However:

(7)    If the Commercial Software delivered under this Contract is published and copyrighted, it is
        licensed to the Company without disclosure prohibitions; but
(8)    If any Commercial Software is delivered under this Contract with the copyright notice in 17
        U.S.C. 401, it will be presumed to be published, copyrighted, and licensed to the Company
        without disclosure restrictions, unless a statement substantially as follows accompanies such
        copyright notice: "Unpublished -- rights reserved under the copyright laws of the United
        States.''   The Company will treat such Commercial Software as Confidential Information to the
        extent that such is actually the case.
  PART FOUR:  REPRESENTATIONS, WARRANTIES AND LIABILITIES

General Warranties.  The Contractor warrants that the recommendations, guidance, and performance of the Contractor under this Contract will: (1) be in accordance with sound professional standards and the requirements of this Contract and without any material defects; (2) unless otherwise provided in the RFP, be the work solely of the Contractor; and (3) no Deliverable will infringe on the intellectual property rights of any third party.

Additionally, with respect to the Contractor's activities under this Contract, the Contractor warrants that: (1) the Contractor has the right to enter into this Contract; (2) the Contractor has not entered into any other contracts or employment relationships that restrict the Contractor's ability to perform the contemplated services; (3)  the Contractor will observe and abide by all applicable laws and regulations, including those of the Company regarding conduct on any premises under the Company's control; (4) the Contractor has good and marketable title to any goods delivered under this Contract and in which title passes to the Company; (5) all hardware, software, firmware, and similar devices and materials provided under this Contract will "year 2000 compliant," meaning that the hardware, software, firmware, and similar devices and materials are designed to operate without regard to the turning of the century and processes dates in a manner that takes into account dates occurring before and after the turning of the century; and (6) the Contractor has the right and ability to grant the license granted in any Deliverable in which title does not pass to the Company.

The warranty regarding professionalism and material defects is a 1-year warranty.  All other warranties will be continuing warranties.    If any portion of the Project fails to comply with these warranties, and the Contractor is so notified in writing, the Contractor will correct such failure with all due speed or will refund the amount of the compensation paid for such portion of the Project.  The Contractor will also indemnify the Company for any direct damages and claims by third parties based on a breach of these warranties.   This obligation of indemnification will not apply where the Company has modified or misused the Deliverable and the claim is based on the modification or misuse.  The Company agrees to give the Contractor notice of any such claim as soon as reasonably practicable and to allow the Contractor to control the defense of the a claim.  If a successful claim of infringement is made, or if the Contractor reasonably believes that an infringement claim that is pending may actually succeed, the Contractor will do 1 of the following 4 things:  (1) modify the Deliverable so that it is no longer infringing; (2) replace the Deliverable with an equivalent or better item; (3) acquire the right for the Company to use the infringing Deliverable as it was intended for the Company to use under this Contract; or (4) remove the Deliverable and refund the amount the Company paid for the Deliverable and the amount of any other Deliverable or item that requires the availability of the infringing Deliverable for it to be useful to the Company.

Software Warranty.  If this Contract involves software as a Deliverable, then, on acceptance and for 12 months after the date of acceptance of any Deliverable that includes software, the Contractor warrants as to all software developed under this Contract that: (a) the software will operate on the computer(s) for which the software is intended in the manner described in the relevant software documentation, the Contractor's Proposal, and the RFP; (b) the software will be free of any material defects; (c) the Contractor will deliver and maintain relevant and complete software documentation, commentary, and source code; and (d) the source code language used to code the software is readily available in the commercial market, widely used and accepted for the type of programming involved, and support programming in the language is reasonably available in the open market; and (g) the software and all maintenance will be provided in a professional, timely, and efficient manner.

For Commercial Software licensed from a third party that is incorporated in a Deliverable, the Contractor represents and warrants that it has done 1 of the following 3 things: (a) obtained the right from the third-party licensor to commit to the warranties and maintenance obligations in this Section; (b) obtained a binding commitment from the licensor to make those warranties and maintenance obligations directly to the Company; or (c) fully disclosed in the RFP any discrepancies between the requirements of this section and the commitment the third-party licensor has made.

In addition, for Commercial Software that is incorporated in a Deliverable, the Contractor will: (a) maintain or cause the third-party licensor to maintain the Commercial Software so