Process & Vendor Management Consulting Services

Transcription

1 USAC REQUEST FOR PROPOSAL Process & Vendor Management Consulting Services CONTRACT INFORMATION: Contract Number: TBD Award Effective Date: TBD Contract Period of Performance: TBD Contract Award Value: NTE $200, PO Number : TBD Reserved : TBD Number of pages, including attachments: TBD CONTRACT ISSUED BY: Universal Service Administrative Company (USAC) th Street NW, Suite 900 Washington, DC USAC CONTRACTS ADMINISTRATOR: Becca Wray Procurement Specialist III P: E: becca.wray@usac.org Vendor TBD <Title> P: E: CONTRACTOR SIGNATURE: Authorized Signature: Date Signed: Printed Name and Title of Contact: USAC SIGNATURE: USAC Contracting Official Signature: Date Signed: Printed Name and Title of Contact: 1

2 I. TYPE OF CONTRACT EN Process & Vendor Management USAC intends to award a single Contract for the Process & Vendor Management Consulting Services. Services shall be performed on a T&M basis using the labor categories set forth in Attachment 1; Bid Sheet, subject to a not-to-exceed ( NTE ) amount of $200, USAC will not be obligated to pay Contractor any amount in excess of the NTE amount and Contractor shall not be obligated to continue performance if doing so would exceed the NTE. The NTE may only be increased by written modification signed by both parties. The fixed hourly rates set forth in Attachment 1; Bid Sheet, which will be used for pricing of future amendments and modifications to the Contract, include all wages and other direct and indirect costs, including general and administrative expenses, overhead, materials, taxes, shipping, and profit. The amount due Contractor under an invoice submitted in accordance with the requirements of Section X below, shall be computed by multiplying the hourly rate by the number of direct labor hours actually worked by the personnel in performance of this Contract during the pay period covered by the invoice. Fractional parts of an hours shall be payable on a prorated basis. No overtime is authorized or will be paid for services performed under this Contract. II. PURPOSE USAC is in the early stages of implementing an operational process optimization program which will support both the Funding Programs / support divisions and the vendors supporting them. The objective of these process activities is intended to aid Programs in the continuous improvement of their operational effectiveness through the documentation and improvement of operational processes across the customer lifecycle. USAC is looking to engage a consultant to effectively drive and have strategic and operational responsibility for a process development, management strategy, standards development & implementation, compliance and maturity of processes within the company. A key element of this work is to utilize the processes for more effective vendor management across the business. As part of this effort the Program teams across USAC are looking to develop or hire resources to bring to bear on the needs for process leadership and vendor management support across the company. Strategic leadership and development of these resources is a key part of this contract. This effort is focused on providing the following: III. Defining and beginning the implementation of an organizational vision established in the Strategic Plan for process development, culture and maturity The introduction of various business process initiatives Establishing a process governance structure Develop internal strategies for implementation and ongoing management of business operations vendors through process documentation, performance metrics, SLAs and contractual arrangements Collaboration with the USAC teams to drive organizational transformation through process and measurement initiatives. COMPANY PROFILE USAC is a not-for-profit Delaware corporation, which works under the oversight of the Federal Communications Commission (FCC). USAC is not a federal agency, a government corporation, a government controlled corporation or other establishment in the Executive Branch of the United States Government. USAC is not a contractor to the Federal Government. The Contract awarded as a result of this RFP will not be a subcontract under a Federal prime contract. USAC does, however, conduct its procurements in accordance with the terms of a Memorandum of Understanding with the FCC, which requires USAC to adhere to the following provisions from the Code of Federal Regulations: 2 C.F.R ; ; and App. II to C.F.R. Part 200 (collectively Procurement Regulations ). IV. BACKGROUND The Universal Service Administrative Company (USAC) is dedicated to achieving universal service. This important principle suggests that all Americans deserve accessible, affordable and pervasive telephone and internet services. USAC s reason for existence is to ensure that access to telecommunications and broadband is available to all Americans. We administer the universal service fund, 2

3 some $10 billion that goes to the companies and institutions that make this possible. Despite pervasive connectivity in most urban areas in the United States, as of January 2015, the FCC estimated that nearly 55 million Americans across the country had no access to broadband services. The funds we administer exist to fill these gaps in access. USAC is in a period of intense transformation driven by both external and internal demands requiring rapid change across the organization. V. PERIOD OF PERFORMANCE The period of performance of this Contract will commence on or around May 10, The term of this Contract will be twentyfour (24) weeks ( Term ). USAC may require continued performance of any Services beyond the expiration of Contract Term, or any period included in the Term, within the limits and at the rates specified in the Contract. USAC may extend the services more than once, but the total extension of performance hereunder shall not exceed twelve (12) months. The Procurement Specialist may exercise the option by written notice to Contractor within ten days prior to expiration of the then current term. VI. WHERE THE WORK TAKES PLACE All required Contract Services must be performed within the United States. Contract Services are required to be performed at USAC s office and/or at Contractor s facility. Services requiring work at USAC s office, One Metro Center, th Street, NW, Suite 900, Washington D.C , USAC shall provide appropriate work space, laptops and appropriate access to its computer network, including audit and timekeeping software, for duties performed at USAC headquarters and remotely as USAC may, at its sole discretion and on a case-by-case basis, allow telecommuting. NOTE: Contractor personnel requiring access to USAC IT Systems will be required to sign USAC s IT Security Rules of Behavior Form and complete mandatory IT Security Online Training; approximately two hours in duration. All Contractor personnel that perform work on site at USAC shall complete the USAC s Visitor Form, USAC Visitor Form and wear a badge while on premises. VII. SUBMISSION INSTRUCTIONS A. CONTRACT TERMS AND CONDITIONS The Contract awarded as a result of this RFP will be governed by, and subject to, the requirements, terms and conditions set forth in this RFP and any attachments listed (hereafter collectively referred to as the Terms and Conditions ). Offeror s submission of a proposal constitutes its agreement to the Terms and Conditions and their precedence over any other terms, requirements, or conditions proposed by Offeror. The Offeror s proposal may identify deviations from, or revisions, exceptions or additional terms (collectively exceptions ) to, the Terms and Conditions, but only if such exceptions are clearly identified in a separate section within each proposal volume entitled Exceptions to RFP Terms. Proposals that include material exceptions to the Terms and Conditions may be considered unacceptable and render Offeror ineligible for award unless the Offeror withdraws or modifies any unacceptable exceptions prior to USAC s selection of the successful offeror for award. USAC will only consider changes or additions to the RFP terms and conditions that are included in Offeror s proposals. After selection of the awardee, USAC will not consider or negotiate any exceptions to the Terms and Conditions. B. PERIOD FOR ACCEPTANCE OF OFFERS The Offeror agrees to hold the prices in its offer firm for 120 calendar days from the date specified for receipt of offers, unless another time period is specified in an addendum to the solicitation. C. PERIOD FOR ACCEPTANCE OF OFFERS Proposals must: Concisely address USAC s requirements, as set forth in below Sections X: Goals and XI: Scope of Services and Deliverables, and should not contain a significant amount of corporate boilerplate marketing information. Be submitted to Becca Wray, USAC Purchasing Department, no later than 4:00 PM EST on Monday, April 26, 2017 ( Proposal Due Date ). 3

4 Be submitted in the form of one electronic copy, separated by volumes. o The electronic copy must be submitted to rfp@usac.org. Inquiries may be ed to Becca Wray at rfp@usac.org, or call (202) To be timely, proposals must be received by USAC by the Proposal Due Date at the locations specified above. Any offer, modification, revision, or withdrawal of an offer received at the USAC office designated in the solicitation after the Proposal Due Date and Time is late and will not be considered by USAC, unless USAC determines, in its sole discretion, that circumstances beyond the control of Offeror prevented timely submission and consideration of the offer is in the best interest of USAC, or the offer is the only proposal received by USAC. D. DATES AND TIMEFRAMES *All Dates are subject to change at the discretion of USAC Event Dates/Timeframe Release of RFP April 12, 2017 Deadline for Contractor Questions April 17, 2017 Deadline for USAC to respond to Contractor questions April 18, 2017 Deadline for Contractor submission of Proposals April 26, 2017 Selection of Contractor for Award May 4, 2017 Contract Effective Date May 10, 2017 E. AMEND, REVISE OR CANCEL RFP USAC reserves the right to amend, revise or cancel this RFP at any time at the sole discretion of USAC and no legal or other obligations are assumed by USAC by virtue of the issuance of this RFP, including any commitment to procure the services sought herein. VIII. EVALUATION PROCESS The consultants must be capable of providing experienced and qualified professional personnel to perform specified Contract activities in accordance with timing requirements set forth in this Contract. USAC will issue Contracts in accordance with the procedures set forth in the contract. A. STEPS FOR SUBMITTING PROPOSALS Contractor shall perform the following steps, which are necessary for Contract award, in order to be selected for award at USAC: Contractor may submit one proposal in response to this request for proposals (RFP), which must include the following information: Each proposal volume must contain a cover page. On the cover page, please include: o The name of the Contractor s organization; o The Contractor s contact name; o The Contractor s contact information (address, telephone number, address, website address); o The Contractor s DUNS number; o The date of submittal; o A statement verifying the proposal is valid for a period of 120 days; and o The signature of a duly authorized Offeror representative. Executive Summary: Page Limit: 2 including cover page. An executive summary summarizing all key features of the proposal, including the identification of any subcontractors and affiliated individuals or firms that will assist the Offeror in performing the Contract. Pricing information should not appear in the Executive Summary. Technical Approach: Page Limit: 3 including cover page. Explanation of Offeror s understanding of the Contract s project and project objectives. o In-depth discussion of Offeror s technical approach process and approach to achieving the project goals, objectives, and/or deliverables. 4

5 o A list, by name, of all key personnel, along with the labor category they will fill. For each key person, provide a biography that includes his/her educational background, job and related experience, a list of specific efforts he/she has supported, and references. A schedule that includes a proposed schedule and approach for managing and providing the Services and Deliverables required by the Contract. Offeror should also outline any deviations from the Contract defined Deliverables, Services or objectives. o A detailed explanation of Offeror s experience in projects of this size and scope. o A detailed explanation of Offeror s approach to delivering USAC s desired outcome, in the timeframe and with the level of resources allocated for this project. Price: Page Limit: 2 including cover page. Estimated hourly breakdown of each key personnel. 1. Evaluation USAC will award a Contract to the responsible Offeror whose offer conforming to the Contract will be most advantageous to USAC, price and other factors considered. The evaluation factors include technical and price factors, with technical being substantially more important than the price factor will be identified in the RFP and will include, at a minimum, technical and price factors, with technical being more important than price. Technical: The technical sub factors include the following which are listed below in descending order of importance: a. Technical Approach b. Experience c. Key Personnel d. Performance and Deliverable Schedule Price Evaluation: USAC will evaluate price based on the total not-to-exceed cost of the project described in the RFP. However, price is the least important evaluation factor and the Contract may not be awarded to the lowest priced Offeror. Price may become a more important selection factor if the ratings for the technical factor are the same or very close to the same for the top rated offerors. In addition to considering the total prices of the Offerors when making the award, USAC will also evaluate whether the proposed ceiling and prices are realistic (i.e., reasonably sufficient to perform the requirements) and reasonable. Proposals containing prices that are determined to be unrealistic or unreasonable will not be considered for award. 2. Award Information USAC may evaluate offers and award a contract after in-person discussions take place. USAC may reject any or all offers if such action is in the public s or USAC s interest; accept other than the lowest offers; and waive informalities and minor irregularities in offers received. B. DOWN-SELECT PROCESS USAC may determine that the number of proposals received in response to this RFP are too numerous to efficiently conduct a full evaluation of all evaluation factors prior to establishing a competitive range. In such case, USAC may conduct a down-select process to eliminate Offerors, prior to discussions, from further consideration based on a comparative analysis of Offerors price proposals. Proposals that include proposed prices that are significantly higher than the median proposed price for all Offerors may be excluded from the competition without evaluation under the other evaluation factors. Proposals that contain prices that are unrealistically low in terms of sufficiency to perform the Contract may also be excluded from the competition. IX. CURRENT SITUATION USAC has a notional idea of how process development and support can be structured in the company to drive or support many of the company s internal objectives. The initial work on process development and business architecture has been performed by a small cadre of IT staff to drive System development programs as needed. Individual resources within our key programs have been hired, or are in process of being hired, to focus on process development, documentation and optimization. In addition to improving outcomes, quality and performance within USAC the company is also cognizant of the need for the same rigor around our vendor management efforts which have to date been contractual rather than performance based. X. GOALS USAC intends to achieve the following near-term goals: Develop strategies for implementation and ongoing management of business operations vendors Install a set of standards for process development and optimization 5

6 XI. Create a framework for the development of a process culture Increase collaboration across USAC divisions based on better understanding of shared processes Reduce cost of vendor outsourcing efforts Install a process culture at the company SCOPE OF SERVICES AND DELIVERABLES A. SCOPE OF SERVICES To meet the above objectives, USAC is seeking consulting services to assist with the development, management, reporting, analysis, communication and optimization of business and vendor processes. The selected consultant will leverage their knowledge of best practices in order to complete the following activities: a) Establish and maintain project plan and help to coordinate between programs and supporting units by identifying interdependencies. b) Assist with design and creation of multiple process documents. Provide process analysis and assist in developing plans to help address opportunities for improvement and increased efficiency c) Develop and draft a framework for process management in USAC d) Support USAC in vendor contract negotiations and ongoing vendor management e) Provide structured and unstructured (working sessions) education to Program and support unit leadership on the topic of process management best practices. f) Documentation of approach, lessons learned and best practices based on implementation of Process culture g) Documentation of approach, lessons learned and best practices based on implementation of a vendor management framework B. DELIVERABLES At the end of this 24-week project, the consultant will deliver the following: Deliverable Description Process Documentation These standards should support BPMN2.0 and be useable in the proprietary systems of the Standards company Vendor management This framework should identify the key roles, processes and activities to support high quality framework vendor management at USAC Training Strategy Roadmap A training project plan that outlines the core training topics, key training delivery timeframe, the platform for delivering each training and a communication strategy to inform all stakeholders. Process optimization This document should include a playbook for the documentation, development and optimization Approach of USAC processes Throughout the project, the consultant is expected to solicit feedback on interim deliverable drafts from key audiences such as USAC leadership and divisional project managers. XII. KEY PERSONNEL The Contractor shall identify a Key Process Leader, who will serve as a single point of contact for the day-to-day management of the Contract. XIII. LABOR CATEGORIES The Contractor may provide consultant staffing for one or more of the following labor categories: 1. Consultant 2. Engagement Manager 3. Engagement Director The Contractor may propose additional labor categories in its Proposal submission. Any additional Labor Categories must include the associated labor hour bill rate for each additional category submitted as well as the experience and qualifications of the personnel to be assigned to that labor category. 6

7 The Contractor shall propose one (1), at least 80% dedicated Consultant, who must work on-site, at USAC headquarters, at least four (4) days per week, during the entirety of the Contract. The Contractor shall also propose at least one (1) Engagement Manager (or equivalent) who is dedicated part-time, but is not required to work on-site, at USAC headquarters. XIV. PAYMENT & INVOICING A. PAYMENT FOR SERVICES ACCEPTED: (a) USAC will pay the Contractor as follows upon the submission of invoices approved by the COR, provided that the Contractor has submitted an invoice that complies with the invoices clause (section VII.B, below). 1. Payment for Labor. The amounts to be paid for work required and actually performed by Contractor personnel shall be computed by multiplying the appropriate hourly rates prescribed in the Contract by the number of direct labor hours performed during the invoice period. Fractional parts of an hour shall be payable on a prorated basis. The hourly rates identified in Attachment 1 are fully loaded and include all direct and indirect costs, including wages, overhead, general and administrative expenses, material costs, travel expenses and profit. 2. Other Costs. Unless specified in this section VII, any other direct or indirect costs, including travel expenses, incurred by Contractor in the performance of this Contract will not be paid by USAC. (b) Prompt Payment. USAC will pay invoices for accepted Services and Deliverables within 30 calendar days of receipt, provided such invoice is submitted in accordance with section B, below B. INVOICES: Contractor shall submit proper invoices to: Accounting@usac.org with a copy to Becca Wray, Procurement Specialist, at becca.wray@usac.org. Invoices shall be submitted by the 4 th of each Month. To constitute a proper invoice, the invoice must include, at a minimum the following information and/or attached documentation: XV. (a) Name and address of Contractor; (b) Invoice date and number; (c) Contract Number: EN (d) PO Number: TBD (e) Description, quantity and dates of the Deliverables accepted and the Services performed, including time records during the invoice period of performance, and for each labor category billed, the number of labor hours performed by labor category and the percentage this number represents of the monthly budgeted hours for each labor category; (f) A statement of the total labor charges incurred during the pay period, and the percentage this amount represents of (i) the total monthly budgeted labor hours and (ii) the total Ceiling Price set forth in Attachment 1. (g) Itemized receipts for any invoiced travel expenses in accordance with USAC s Travel Policy; (h) Any other substantiating documentation or information as reasonably required by USAC; (i) Name and address of official to whom payment is to be sent; (j) Name, title, and phone number of person to notify in event of invoice or payment issues; and (k) Electronic funds transfer (EFT) banking information. USAC shall not be liable for uncompleted or erroneous transfers which occur as a result of Contractor providing incorrect or out of date EFT information. Contractor shall submit invoices for payment no more frequently than once every month, with submission of the first invoice no earlier than 30 days after the Effective Date of the Contract. INSPECTION /ACCEPTANCE (a) Contractor shall only tender for acceptance Services and Deliverables that conform in all respects to the requirements of this Contract. USAC will, following Contractor s tender inspect or test the Services or Deliverables and: (i) accept the Services and Deliverables; or (ii) reject the Services and Deliverables and advise Contractor regarding the reasons for the rejection. If rejected, USAC may require Contractor to replace or correct Services or Deliverables that at time of delivery 7

8 XVI. failed to meet contract Requirements. Except as otherwise specified in paragraph (a) of this clause, the cost of replacement or correction shall be determined under section VII.A.1(a) above, but the hourly rate for labor hours incurred in the replacement or correction shall be reduced to exclude that portion of the rate attributable to profit. Unless otherwise specified herein, the portion of the hourly rate attributable to profit shall be 10 percent. Contractor shall not tender for acceptance materials and services required to be replaced or corrected without disclosing the former requirement for replacement or correction, and, when required, shall disclose the corrective action taken. If repair, correction, replacement or re-performance will not cure the defects, is not possible, or is not in USAC s best interest, USAC may terminate for cause under section XXV, below and reduce the Contract price to deduct amounts that were to be paid Contractor for the Deliverable(s) or Service(s) that were not prepared or performed in conformance with the Contract requirements. (b) If Contractor fails to proceed with reasonable promptness to perform required replacement or correction, and if the replacement or correction can be performed within the ceiling price (or the ceiling price as increased by the USAC), USAC may: (A) By contract or otherwise, perform the replacement or correction, charge to Contractor any increased cost, or deduct such increased cost from any amounts paid or due under this contract; or (B) Terminate this contract for cause. Failure to agree to the amount of increased cost to be charged to Contractor shall be a dispute under the Disputes clause of the contract. (c) Notwithstanding paragraphs VIII.A or VIII.B above, USAC may at any time require Contractor to remedy by correction or replacement, without cost to USAC, any failure by Contractor to comply with the requirements of this contract, if the failure is due to (i) fraud, lack of good faith, or willful misconduct on the part of Contractor or any subcontractor, or their respective employees, agents and independent consultants; or (ii) Negligence by Contractor or any subcontractor, or their respective employees, agents and independent consultants. USAC PERSONNEL USAC s Chief Procurement Officer ( CPO ), Douglas K. Stenger, has sole authority for all contractual issues arising under this Contract, unless delegated in writing to another USAC representative. XVII. LABOR CATEGORIES AND CONTRACTOR PERSONNEL (a) Contractor shall utilize all labor categories set forth in Attachment 1 and shall not: (i) add to or change the labor categories; (ii) change the duties performed by each of the labor categories; or (iii) change the time commitment of each of the labor categories identified in Attachment 1, without first obtaining USAC s prior written approval. USAC may terminate all or a part of the Contract if Contractor makes any of the foregoing changes to the labor categories in Attachment 1, without first obtaining USAC s prior written approval. (b) Contractor shall at all times assign an adequate number of personnel to perform the services required by this Contract. The personnel Contractor assigns to perform the Services shall be fully trained and qualified for the services they are to perform before they begin performing such services. In the event Contractor plans on assigning new personnel to any of the labor categories, Contractor shall first obtain USAC s consent before placing the new personnel on the Contract, which consent will not be withheld, delayed or conditioned, provided the new employee possesses at least the same experience, training, qualifications and professionalism as the outgoing person in that position. Contractor shall provide USAC with resumes upon request. (c) In the event USAC determines in good faith that the continued assignment of a Contractor employee to perform any part of the Services is not in the best interests of USAC, then USAC shall give Contractor written notice to that effect. After receipt of such notice, Contractor shall have five (5) working days in which to investigate the matters stated in such notice, discuss its findings with USAC, and resolve any problems with such person. If, following such period, USAC requests replacement of such person, Contractor shall remove such person from performance of the Contract and shall, within five (5) days, propose replacement personnel with acceptable experience, training and qualifications for the position. Failure to promptly propose a reasonably acceptable replacement with the qualifications required for the position, or failure to promptly staff the Contract with such replacement, is grounds for termination of the Contract. Notwithstanding the foregoing, in the event USAC determines that there exists a potential for imminent harm to the programs, USAC, or USAC s employees, Contractor shall remove the employee immediately upon request by USAC. 8

9 XVIII. ONGOING COMMUNICATION During performance of this Contract, Contractor personnel shall communicate on a regular basis with USAC staff, and, as requested by USAC s Procurement Specialist or TPOC, attend periodic status meetings with USAC staff to discuss project status, including percentage of completion and project status to date. Status meetings will be held at USAC offices. Attendance at status meetings may be via teleconference, unless USAC expressly requests the physical presence of Contractor personnel at the meeting. XIX. ASSIGNMENT/SUBCONTRATCING With the exception of the assignment of rights to receive payment, neither this Contract, nor any right or interest hereunder, shall be assigned or delegated by Contractor without the prior written agreement of USAC. Any purported assignment or delegation that violates this section is void. Contractor or its assignee may assign its rights to receive payment due as a result of performance of this Contract after submitting a notice of assignment in a form acceptable to USAC signed by an authorized officer of Contractor and accompanied by a true copy of the instrument of assignment executed by Contractor and the assignee. Contractor shall not enter into any subcontracts without obtaining USAC s prior written consent. Contractor shall not enter into any subcontract with a company or entity that is debarred, suspended, or proposed for debarment or suspension by any Federal executive agency unless there is a compelling reason to do so. Contractor shall review the System for Award Management (SAM) for suspension or debarment status of proposed subcontractors. See XX. XXI. CONFLICT OF INTEREST (a) USAC is the appointed neutral administrator of the federal Universal Service programs (Programs) and the federal Universal Service Fund (USF). USAC is governed by a Board of Directors comprised of various stakeholders in the universal service programs, and is forbidden from advocating positions on universal service policy matters. Because of USAC s unique role as neutral administrator and the use of public funds, it is essential that any Contractor providing assistance to USAC relating to the administration of the Programs and the USF maintain the same neutrality, both in fact and in appearance, and avoid any conflict of interest or even the appearance of a conflict of interest relating to the performance of this Contract. To the extent that Contractor, or any of its principals, has client, membership, financial and/or any other material affiliation with entities that participate in the federal USF in any respect (including but not limited to receiving funds from the Programs, contributing to the USF, advocating policy positions on matters related to the Programs or the USF; or representing clients who participate in the USF), there may be actual, potential and/or apparent conflict(s) of interest associated with providing services related to the administration of the USF. An actual or potential conflict of interest, or the appearance of a conflict of interest, may also arise from any employment or consultation arrangement involving USAC or FCC employees and the Contractor or from the existence of any ownership or control of the Contractor by an FCC or USAC employee. (b) Prior to commencing performance, and at any time during the term of this Contract, Contractor shall promptly notify USAC in writing of any actual or potential conflicts of interest involving Contractor, or any circumstances that give rise to the appearance of a conflict of interest, and the means by which it proposes to avoid, neutralize, or mitigate such conflicts. If USAC, in its sole discretion, determines that a conflict or appearance of a conflict cannot be sufficiently, avoided, neutralized or mitigated, USAC may terminate all or a portion of this Contract. (c) Contractor shall not issue any public statement relating to or in any way disclosing any aspect of this Contract without the prior written consent of USAC. Contractor must not advocate any policy positions with respect to the Programs or USF during the term of this Contract. (d) By its execution hereof, the Contractor represents and certifies that it has not paid or promised to pay a gratuity, or offered current or future employment or consultancy, to any USAC or governmental employee in connection with the award or performance of this Contract. USAC AND APPLICABLE LAWS USAC is not a Federal agency, a government corporation, a government controlled corporation or other establishment in the Executive Branch of the United States Government. USAC is not a contractor to the Federal Government and this Contract is not a subcontract under a federal prime contract. USAC conducts its procurements in accordance with the terms of a Memorandum of Understanding with the FCC, which requires USAC to adhere to certain procurement-related provisions of the Code of Federal Regulations, 2 C.F.R , , and App. II to C.F.R. Part 200 (collectively procurement standards ). 9

10 Contractor shall comply with the procurement standards and all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this Contract. XXII. INDEPENDENT CONTRACTOR Contractor, (including its principals, subcontractors, agents and employees), acknowledges and agrees that it is an independent contractor to USAC and not an employee of USAC. As an independent contractor, Contractor shall not hold herself/himself out as an employee or authorized agent of USAC and Contractor has no authority to bind USAC to any agreement or commitment, unless expressly authorized to do so by this Contract. USAC will not withhold or contribute to Social Security, workers compensation, federal or state income tax or unemployment compensation on behalf of Contractor. Contractor is not entitled to participate in, or obtain any benefits from, USAC employee benefit plans. Contractor shall indemnify and hold USAC harmless from and against any and all loss, liability, cost and expense (including attorneys fees) incurred by USAC as a result of its treatment of Contractor as an independent contractor, not an employee. XXIII. INSURANCE If any part of this Contract involves Contractor's performance at any place where USAC conducts operations, or with USAC material or equipment furnished to Contractor by USAC, Contractor shall take all necessary precautions to prevent injury to persons or property, including maintenance of appropriate insurance. Contractor shall maintain public liability, personal injury, comprehensive or commercial general liability, and property damage insurance, as well as employer's liability and worker s compensation insurance, in amounts required by law or appropriate for the industry, whichever is greater, to protect USAC from, and compensate USAC for, the liabilities and risks arising from performance of this Contract and from any statutory liabilities whatsoever arising therefrom. Contractor shall produce evidence of such insurance upon request by USAC. Contractor shall maintain the insurance hereby required in full force and effect during the Term of this Contract and for a period of three years thereafter. XXIV. TERMINATION FOR CONVENIENCE USAC may terminate this Contract, or any portion of this Contract, for any reason or no reason upon one day s prior written notice to the Contractor. Subject to the terms of this Contract, Contractor shall be paid for all time actually spent performing Services required by the Contract and accepted by USAC, plus reasonable charges Contractor can demonstrate to the satisfaction of USAC using its standard record keeping system, have resulted from the termination. Contractor will not be paid for any work performed or costs incurred which reasonably could have been avoided. In the event of a partial termination, Contractor shall continue to perform the portions of the Contract not terminated. XXV. TERMINATION FOR CAUSE Upon the expiration of a five (5) day cure period (during which the defaulting party did not provide a sufficient cure), the nondefaulting party may terminate this Contract, in whole or in part, for cause in the event of the defaulting party s failure to comply with any material term or condition of the Contract, as applicable, engages in negligence or willful misconduct, or if either party fails to provide the other party, upon request, with adequate assurances of future performance. In the event of termination for cause, the non-defaulting party shall be entitled to any and all rights and remedies provided by law or equity. If it is determined that USAC improperly terminated this Contract for cause, such termination shall be deemed a termination for convenience. In the event of partial termination, the defaulting party shall continue to perform the portion of the Services not terminated. XXVI. STOP WORK USAC may, in its sole discretion, issue a stop work order at any time during the Contract Term. Upon receipt of a stop work notice, or upon receipt of a notice of termination (for cause or convenience), unless otherwise directed by USAC, Contractor shall, on the stop work date identified in the stop work or termination notice: (A) stop work, and cause its, subcontractors, consultants or agents to stop work, to the extent specified in said notice; and (B) subject to the prior written approval of USAC, transfer title and/or applicable licenses to use, as appropriate, to USAC and deliver to USAC, or as directed by USAC, all materials, Data, work in process, completed work and other USAC Information or material produced in connection with, or acquired for, the work terminated. In the event of a stop work order, all deadlines in this Contract shall be extended on a day for day basis from such date, plus reasonable additional time, as agreed upon between the parties, acting in good faith, to allow Contractor to re constitute its staff and resume the work. 10

11 XXVII. CONFIDENTIAL INFORMATION (a) Confidential Information. Confidential Information includes, but is not limited to, information, Data, material, or communications in any form or format, whether tangible or intangible, spoken or written (collectively referred to hereafter as "Information"), that contains, reflects, or is derived from or based upon, or is related to: (1) Personally Identifiable Information (PII), as defined by NIST Special Publication ; (2) Management, business, procurement or financial Information of either party, the FCC or a USF stakeholder, including proprietary or commercial Information and trade secrets that have not previously been publicly disclosed; (3) Information concerning USAC s relationships with other vendors, the FCC, USF Stakeholders and financial institutions; (4) Information marked to indicate disclosure limitations such as Confidential Information, proprietary," "privileged," "not for public disclosure," work product, etc.; (5) Information compiled, prepared or developed by Contractor in the performance of this Contract; (6) any Information identified as confidential by the disclosing party. (b) Non-Disclosure/Use/Irreparable Harm. It is anticipated that one of the parties ( Disclosing Party ) may disclose, or has disclosed, Confidential Information to the other party ( Recipient ). At all times during the term of the Contract and thereafter, the Recipient shall maintain the confidentiality of all Confidential Information and prevent its unauthorized disclosure, publication, dissemination, destruction, loss, or alteration. Recipient shall only use Confidential Information for a legitimate business purpose of USAC and in the performance of this Contract. Recipient acknowledges that the misappropriation, unauthorized use, or disclosure of Confidential Information would cause irreparable harm to the Disclosing Party and could cause irreparable harm to the integrity of the USF Programs. (c) Employee Access to Confidential Information. Recipient shall not disclose Confidential Information to partners, joint ventures, directors, employees, agents and subcontractors ( sub-recipient ) unless absolutely necessary for Recipient s or sub-recipients performance of this Contract, and if necessary, shall only disclose the Confidential Information necessary for sub-recipient s performance of its duties. As a pre-condition to access to Confidential Information, Recipient shall require sub-recipients, including its employees and subcontractors, and the employees of any subcontractor, to sign a nondisclosure or confidentiality agreement containing terms no less restrictive than those set forth herein. The Disclosing Party may enforce such agreements, if necessary, as a third-party beneficiary. (d) Contractor Enforcement of Confidentiality Agreement. Contractor must report, and describe in detail, any breach or suspected breach of the non-disclosure requirements set forth above to the USAC General Counsel immediately upon becoming aware of the breach, including when and how the breach occurred, who was involved, and what has been done to recover the Information. (e) Exclusions. If requested to disclose Confidential Information by an authorized governmental or judicial body, Recipient must promptly notify the Disclosing Party of the request and to the extent that it may legally do so, Recipient must refrain from disclosure of the Confidential Information until the Disclosing Party has had sufficient time to take any action as it deems appropriate to protect the Confidential Information. Neither Contractor nor its subcontractors shall issue any public statement relating to or in any way disclosing any aspect of this Contract without the prior written consent of USAC. Notwithstanding anything herein to the contrary, USAC may, without notice to Contractor, provide this Contract, including Contractor s proposal information, and any information or Data delivered, prepared or developed by Contractor in the performance of the Contract to the FCC or other governmental or judicial body, and may publicly disclose basic information regarding this Contract, e.g., name of Contractor, price, basis for selection, description of services/deliverables and any provisions necessary for USAC to justify actions taken with respect to the Contract. XXVIII. USAC INFORMATION AND PROPERTY (a) USAC Information includes Information and Data provided by USAC to Contractor for use in the performance of this Contract, Data that is collected, developed or recorded by Contractor in the performance of the Contract, including without limitation, business and company personnel information, program procedures and program specific information, and Data that is created or derived from such Data. USAC Information is Confidential Information and subject to all requirements in section XX. (b) Promptly upon the expiration or termination of this Contract, or such earlier time as USAC may direct, Contractor shall, at the direction of USAC, and at no additional cost to USAC, return or destroy all USAC Information, including all copies 11

12 thereof, in the possession or under the control of Contractor. Contractor shall not withhold any USAC Information as a means of resolving any dispute. To the extent that there is a dispute between Contractor and USAC, Contractor may make a copy of such USAC Information as is necessary and relevant to resolution of the dispute. Any such copies shall promptly be destroyed upon resolution of the dispute. XXIX. INFORMATION SECURITY Contractor shall use industry best practices to establish and maintain safeguards to protect the confidentiality, integrity, and restricted availability of USAC Confidential Information in its possession according to industry best practice standards. Contractor shall ensure that its respective local area networks, servers, and personal computers are secure from unauthorized access from within or outside their respective organizations. Contractor shall hold harmless and indemnify USAC from any claims or damages arising from the release or disclosure of any USAC Confidential Information in its possession. Contractor shall immediately notify USAC of any breaches, or potential breaches of its safeguards that protect the integrity and restricted availability of USAC Confidential Information. XXX. PROPRIETARY RIGHTS Contractor agrees that all Data, Software, Deliverables, reports or other materials developed or conceived by Contractor and/or documented by Contractor first produced in the performance of this Contract, as well as all modifications and improvements thereto and all other designs, discoveries and inventions (collectively Materials ), are USAC property and shall be deemed USAC Information pursuant to section XXI above and works made for hire for USAC within the meaning of the copyright laws of the United States and accordingly, USAC shall be the sole and exclusive owner for all purposes for the use, distribution, exhibition, advertising and exploitation of such Materials or any part of them in any way and in all media and by all means throughout the universe in perpetuity. XXXI. QUALITY ASSURANCE Contractor will execute quality assurance (QA) procedures to ensure USAC receives high quality and timely Deliverables and Services as required by this Contract. In order to monitor Contractor s adherence to systematic QA procedures, Contractor will monitor performance using a Quality Assurance Surveillance Plan (QASP). Methods of QA surveillance will include direct observation, periodic inspection, customer surveys, and performance reporting. Upon project initiation, Contractor will work closely with USAC to develop a QASP to monitor performance according to USAC s requirements and agreed upon service levels. The QASP shall be completed within two weeks of the Contract Effective Date. XXXII. CHANGES The terms of this Contract shall not be modified other than in writing signed by the parties. USAC may modify the services as necessary to fulfill its requirements. XXXIII. RECORD RETENTION During the term of this Contract and for three years following final payment, the Contractor shall maintain and make available at its offices at all reasonable times, the records, materials, and other evidence relating to this Contract for examination, audit, or reproduction. XXXIV. RESPONSIBILITY FOR CONTRACTOR PERSONNEL Contractor personnel working on USAC premises may be required to sign and agree to the terms of a Visitors Form provided by USAC. Contractor is responsible for any actions of its personnel while performing Services under this Contract or while present at a USAC facility, including any actions that violate law are negligent or that constitute a breach of the Visitor Form and/or this Contract. XXXV. PATENT INDEMNITY Contractor shall indemnify, hold harmless and defend USAC and its directors, officers, employees and agents against any and all claims and liability, including attorney s fees and other costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, or misappropriation of, any patent, trademark or copyright, arising out of or related to Contractor s performance of this Contract. 12

13 XXXVI. CHOICE OF LAW/CONSENT TO JURISDICTION This Contract shall be governed by and construed in accordance with the laws of the District of Columbia (the term laws is to be construed as broadly as possible to include case law, statutes, regulations, orders, etc.) without regard to any otherwise applicable principle of conflicts of laws. Contractor agrees that all actions or proceedings arising in connection with this Contract shall be litigated solely and exclusively in the State and, if applicable, Federal courts located in the District of Columbia ( Courts ). This choice of venue is intended to be mandatory and the parties waives any right to assert forum non conveniens or similar objection to venue. The parties consent to in personam jurisdiction in the Courts. Contractor must submit all claims or other disputes to the Contracting Officer for informal resolution prior to initiating any action in the Courts and must work with USAC in good faith to resolve any disputed issues. A dispute over payment or performance, whether informal or in the Courts, shall not relieve Contractor of its obligation to continue performance of the Contract and Contractor shall proceed diligently with performance pending final resolution of any dispute over performance or payment. XXXVII. NOTICES All notices, consent, approval or other communications required or authorized by this Contract shall be given in writing and shall be: (i) personally delivered, (ii) mailed by registered or certified mail (return receipt requested) postage prepaid, (iii) sent by overnight delivery service (with a receipt for delivery), or (iv) sent by electronic mail with a confirmation of receipt returned by recipient s electronic mail server to such party at the following addresses: FOR USAC: FOR CONTRACTOR: USAC [Please Insert Name and Address] th Street Suite 900 Washington, DC ATTN: Douglas K. Stenger, Chief Procurement Officer ATTN: XXXVIII. SEVERABILITY The invalidity or unenforceability of any provisions of this Contract shall not affect the validity or enforceability of any other provision of this Contract, which shall remain in full force and effect. XXXIX. WAIVER The waiver by either party hereto of a breach of any provision of this Contract shall not operate or be construed as a waiver of any subsequent breach by either party. XL. ENTIRE AGREEMENT/BINDING EFFECT This Contract, including Attachment 1, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of this Contract will be effective only if in writing and signed by the party granting the waiver. This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assignees. 13