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Professional Services RFP Legal and Insurance Requirements
RFP Legal and Insurance Requirements
The RFP concludes with a section regarding the legal and insurance requirements of the proposed purchase. Typically, this section includes a version of the forthcoming contract prepared by the court with staff from the funding agency's law department. The section also should identify the chief negotiator, have clauses relating to confidentiality of all information, and specify various insurance requirements.
This section of the RFP is where the court should set out the terms and conditions of the project. See Terms and Conditions Example. Additionally, the court should provide a method for vendors to object to specific terms or conditions. See Vendor Exceptions Form Example also see CMS Contract Terms and Conditions, alternatively see Business Process Exceptions Example.
Many legal and insurance requirements for a RFP are specified by local rules. The requirements covered here are a recommended minimum and do not necessarily reflect the precise RFP requirements for any court. Courts should consult with the local purchasing department to learn what local legal requirements exist for RFPs.
At a minimum, the following items should be incorporated into the RFP's legal and insurance requirements:
Restrictions on Contact with Court Personnel-From the date of release of the RFP and until a determination is made regarding the selection of a contractor, and for the selected vendor until a contract is signed, all contacts with personnel employed by the court should be limited to the vendor liaison. During this period, no prospective vendor should approach personnel employed by or contracted to the court concerning possible employment, nor should the prospective vendor offer court personnel gratuities of any kind to obtain information relating to the proposed procurement. Violations of these conditions will be considered sufficient cause by the court to reject a vendor's proposal, irrespective of any other consideration.
In addition, vendors should be advised that only the acquisition team can answer questions, clarify issues, or render any opinion regarding the RFP. No individual team member, aside from the vendor liaison, should be empowered to make binding statements regarding the RFP.
Inclusion of Suggested Vendor Contract and Other Forms-Vendors should include sample contracts and forms for the provision of services that may be applicable to the RFP. This will aid the acquisition team as it begins contract negotiations. The court should provide a method for vendors to object to specific terms or conditions. See Vendor Exceptions Form Example.
Security of Information-Many court data files and documents are highly confidential. The vendor's employees should be allowed access to this information only as needed when responding completely to the specifications given in the RFP. The vendors should have positive policies and procedures for safeguarding the confidentiality of this data and should be cautioned that they may be liable under privacy legislation for negligent release or misuse of the information. Vendors should be encouraged to sign nondisclosure agreements included in the RFP materials.
Bidder Obligation to Understand RFP Specifications-When the bids are opened it should be understood via appropriate contract language that the vendor has read and understood all of the requirements and specifications of the RFP. In other words, after the responses are opened, any questions with respect to the RFP should be presumed to have been already answered to the vendors' satisfaction. Each proposal should be accompanied by an Intent to Bid letter signed by an authorized representative of the respondent stating the vendor's understanding of this obligation.
Contingencies and Changes-The court should request that responses be firm and not made contingent upon uncertain events or on engineering that will not be performed until after the contract is awarded. Responses should be based upon prices in effect at the time the proposal is submitted. Changes to responses should be set down on an amendment page or pages.
Prohibition on Gratuities-If it is not already a criminal offense under current jurisdiction statutes, the RFP should make it clear that offering, promising, or giving anything of value or benefit to a person serving in the court's capacity with the intent to influence that person's exercise of discretion with respect to the proposed acquisition is grounds for unqualified rejection of the proposal.
Local Laws and Regulations-The court should specify any special business or professional licenses vendor's are required to posses to work in the state or locality.
Required Forms-The court should provide in the RFP any court or funding entity purchasing forms vendors will be required to complete as part of the proposal process, such as EEO affidavits. The RFP should include either copies of all forms the vendors are required to submit or information on obtaining the forms. The standard forms in the RFP should include a sample anti-collusion affidavit and a conflict of interest affidavit. Even if no formal form exists the court should require vendors to submit affidavits addressing these two issues. See Business Process Anti-Collusion and Business Process Conflicts of Interest (4.1.1.5) Example. Courts should require vendors comply with all federal, state, and local employment requirements, such as EEO and ADA.
Statutes and Local Rules that Apply-The RFP should identify the state (or other jurisdiction) whose laws will control the interpretation of contract terms. The RFP also should alert vendors that wherever differences exist between federal and state statutes or regulations affecting the procurement, contract interpretation will be in the direction of that which is most beneficial to the interests of the court. See Business Process Applicable Laws Example.
Immunity from Liability-The RFP should alert vendors that every court person or agency will be immune from liability for the vendor's activities that may arise from any procurement contract involving third parties. Additionally, the court should specify that the vendors must carry workers' compensation insurance coverage in amounts required by local law. The court must specify that neither the vendor, its employees, assignees or subcontractors shall be deemed employees of the court while performing services during the project. See Business Process Indemnity Example.
Federal, State, and Local Taxes-The RFP should inform vendors of the court's tax status and the tax burdens that the vendors will assume as a result of the forthcoming procurement contract. For example, the court should be exempt from federal excise taxes, and no payment will be made for any taxes levied on the wages of the successful vendor's employees. The court also should be exempt from sales and use taxes on the services supplied by the vendor. Therefore, vendors should not in corporate sales or use taxes into any bid. See Business Process Applicable Taxes Example.
If a vendor includes any refundable state or federal tax in a price, the vendor should be required to furnish proof showing that the court will be able to obtain a refund or credit. If an item is to be sold to the court free of federal or state tax, the vendor should not include the tax in the offered price and should furnish proof that the tax will not be imposed upon the court.
Conflicts Between Terms-The court should reserve the right to accept or reject any exception taken by vendors to the terms and conditions of the RFP. The court also should allow itself to negotiate a resolution of any exception.
Equal Employment Opportunities-Any selected vendor must comply with the provisions of federal, state, and its own EEO regulations to ensure that no employee or applicant for employment is discriminated against because of race, religion, color, sex, national origin, age, or handicap. The court also should request that the selected vendor create an affirmative action plan and provide the appropriate state or federal agencies with reports to ensure compliance with equal employment legislation and regulations, if requested. See Business Process Equal Employment Requirements Example.
Patent, Copyright Protection, Trademark, Trade Secret, or Proprietary Information Protection-The court should require vendors to defend at their expense any suit that may be brought against the court based on a claim that the services, or products furnished infringe on a United States patent, copyright, trademark, trade secrecy or other proprietary information. The court also should ensure that the vendor pays the costs and damages finally awarded against the court in any such suit.
The court should give the vendor prompt written notice of the infringement claim and the full right and opportunity to conduct the defense with full information and all reasonable cooperation.
Other Delays-If the delays are caused by the default of a subcontractor, and the default arises out of causes beyond the control of the parties, the court should agree not to hold the vendor liable for damages, unless the services to be furnished by the subcontractor are obtainable from other sources in sufficient time to permit the court or the vendor to meet the required performance schedule.
Ownership of Court Information-The court should clearly define ownership and use of court data. The court should retain ownership of court data and condition how vendors use the data, such as data access and a proscription against the sale of court data. Court data is an important resource for the court and is valuable to outside organizations, particularly in electronic form.
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