RFP Template - General - Wa
STATE OF WASHINGTON
Utilities and Transportation Commission
REQUEST FOR QUALIFICATIONS
AND PROPOSAL FOR PROFESSIONAL CONSULTING SERVICES (RFQ/RFP)
RFQ/RFP NO. 21-PS-29
NOTE: If you download this RFQ/RFP from an agency website located at , Rail News and Notices, you are responsible for sending your name, address, e-mail address, and telephone number to the RFQ/RFP Coordinator in order for your organization to receive any RFQ/RFP amendments or bidder questions/agency answers.
PROJECT TITLE: FRA-Required Highway-Rail Grade Crossing Action Plan, known as the State Action Plan (SAP).
PROPOSAL DUE DATE: April 6, 2021, 5:00 p.m. Pacific Standard Time, Olympia, Washington, USA.
E-mailed bids will be accepted. Faxed bids will not.
ESTIMATED TIME PERIOD FOR CONTRACT: 04/19/2021-02/10/2022.
CONSULTANT ELIGIBILITY: This procurement is open to those consultants that satisfy the minimum qualifications stated herein and that are available for work in Washington State.
CONTRACT TYPE: The contract will be set on a lump-sum basis; that is, all services provided under the contract will be at a cost not to exceed a single lump sum.
TABLE OF CONTENTS
1. Introduction 3
1.1 Purpose and Background 3
1.2 Objectives and Scope of Work 3
1.3 Minimum Qualifications 3
1.4 Funding 3
1.5 Period of Performance 3
1.6 Current or Former State Employees…………………………………………………………………4
1.7 Definitions 4
1.8 Alternative Format 4
2. General Information for Consultants 4
2.1 RFQ/RFP Coordinator and Project Administrator 4
2.2 Estimated Schedule of Procurement Activities 5
2.3 Submission of Proposals 5
2.4 Proprietary Information/Public Disclosure 6
2.5 Revisions to the RFQ/RFP 6
2.6 Federal and State Requirements 7
2.7 Responsiveness 7
2.8 Most Qualified Terms 7
2.9 Contract and General Terms & Conditions 7
2.10 Costs to Propose 8
2.11 No Obligation to Contract 8
2.12 Rejection of Proposals 8
2.13 Commitment of Funds 8
2.14 Payment…………………………………………………………………………………….. 8
2.15 Insurance Coverage 8
3. Proposal Contents 10 3.1 Letter of Submittal 10
3.2 Description of How Consultant Meets Minimum Qualifications 11
3.3 Additional Relevant Experience 11
3.4 Technical Proposal 11
3.5 Management Proposal 12
3.6 Cost Proposal 13
4. Evaluation and Contract Award 14
4.1 Evaluation Procedure 14
4.2 Evaluation Weighting and Scoring 14
4.3 Oral Presentations will be Required 14
4.4 Notification to Proposers 15
4.5 Debriefing of Unsuccessful Proposers 15
4.6 Protest Procedure 15
5. RFQ/RFP Exhibits 16
Exhibit A Certifications and Assurances 17
Exhibit B Sample Professional Service Consultant Agreement 18
Exhibit C State Action Plan Proposal 51
Exhibit D Contractor Certification for Executive Order 18-03 – Workers’ Rights 65
1. INTRODUCTION
1. PURPOSE AND BACKGROUND
The Washington State Utilities and Transportation Commission, hereafter called "AGENCY,” is initiating this Request for Qualifications and Request for Proposal for Professional Consulting Services (RFQ/RFP) to solicit proposals from firms interested in participating on a project to develop the Washington State Highway-Rail Grade Crossing Action Plan, known as the State Action Plan (SAP), as required by the Federal Railroad Administration (FRA).
AGENCY intends to award one contract to provide the services described in this RFQ/RFP.
2. OBJECTIVES AND SCOPE OF WORK
See Exhibit C for background on SAP requirements, internal and external team members and potential stakeholders, proposed timeline for SAP development, stakeholder work plan, and outline of proposed SAP.
3. MINIMUM QUALIFICATIONS
Minimum qualifications include:
• Licensed to do business in the State of Washington or provide a commitment that it will become licensed in Washington within thirty (30) calendar days of being selected as the Apparently Successful Contractor.
• Minimum of five years experience providing consulting services that include analytical studies and surveys, data collection, and data/trend analysis and modeling.
• Minimum of five years experience providing consulting services that include project management and developing action plans, goals, and strategies.
• Minimum of three years experience consulting on railroad issues including, but not limited to, rail crossing safety, rail incident and corridor analysis, railroad crossing safety evaluation, railroad crossing improvement projects, or rail engineering.
• Minimum of three years experience providing consulting services that include stakeholder outreach and engagement, public involvement.
4. FUNDING
The AGENCY has budgeted an amount not to exceed Six Hundred Thousand Dollars ($600,000) for this project.
Any contract awarded as a result of this procurement is contingent upon the availability of funding.
5. PERIOD OF PERFORMANCE
The period of performance of any contract resulting from this RFQ/RFP is tentatively scheduled to begin on or about April 19, 2021, and to end on February 10, 2022. Amendments extending the period of performance, if any, shall be at the sole discretion of the AGENCY.
6. CONTRACTING WITH CURRENT OR FORMER STATE EMPLOYEES
Specific restrictions apply to contracting with current or former state employees pursuant to chapter 42.52 of the Revised Code of Washington. Proposers should familiarize themselves with the requirements prior to submitting a proposal that includes current or former state employees.
7. DEFINITIONS
Definitions for the purposes of this RFQ/RFP include:
Agency – The Utilities and Transportation Commission is the agency of the state of Washington that is issuing this RFQ/RFP.
Apparent Successful Contractor – The consultant selected as the entity to perform the anticipated services, subject to completion of contract negotiations and execution of a written contract.
Consultant – Individual or company interested in the RFQ/RFP and that may or does submit a proposal in order to attain a contract with the AGENCY.
Contractor – Individual or company whose proposal has been accepted by the AGENCY and is awarded a fully executed, written contract.
Proposal – A formal offer submitted in response to this solicitation.
Proposer - Individual or company that submits a proposal in order to attain a contract with the AGENCY.
Request for Qualifications and Proposal (RFQ/RFP) – Formal procurement document in which qualifications are presented and a service or need is identified, but no specific method to achieve it has been chosen. The purpose of an RFQ/RFP is to permit the consultant community to suggest various approaches to meet the need at a given price.
8. ALTERNATIVE FORMAT
The AGENCY complies with the Americans with Disabilities Act (ADA). Consultants may contact the RFQ/RFP Coordinator to receive this Request for Qualifications and Proposal in Braille or on tape.
2. GENERAL INFORMATION FOR CONSULTANTS
1. RFQ/RFP COORDINATOR AND PROJECT ADMINISTRATOR
The RFQ/RFP Coordinator and Project Administrator (RFP/RFQ Coordinator) is the sole point of contact in the AGENCY for this procurement. All communication between the Consultant and the AGENCY upon release of this RFQ/RFP shall be with the RFQ/RFP Coordinator, as follows:
|Name |Betty Young |
|E-Mail Address |betty.young@utc. |
|Mailing Address |Washington Utilities and Transportation Commission |
| |P. O. Box 47250 |
| |Olympia, WA 98504-7250 |
|Physical Address for Delivery| |
| |Same |
|Phone Number |360-292-5470 |
|Fax Number |360-586-1181 |
Any other communication will be considered unofficial and non-binding on the AGENCY. Consultants are to rely on written statements issued by the RFQ/RFP Coordinator. Communication directed to parties other than the RFQ/RFP Coordinator may result in disqualification of the Consultant.
Once the contract is established, the RFQ/RFP Coordinator will:
a. Ensure no work is done until agreements are properly executed.
b. Conduct regular meetings with the consultant to track progress and identify potential concerns.
c. Act as liaison between the Agency and the consultant to ensure compliance.
d. Monitor progress to ensure problems are report and corrected.
e. Ensure all work is within scope of the agreement.
f. Ensure specified time limits are adhered to.
g. Ensure accuracy of billings, including that all costs are allowable and reasonable and appropriate indirect cost rate is used, if applicable.
h. Establish controls to prevent overpayments.
i. Ensure consultant enters monthly payments received from Local Agency into WSDOT DMCS (see Section 31.8(12)).
j. Monitor DBE’s for the duration of the agreement.
k. Ensure all terms and conditions are met prior to final payment. This must include an evaluation of the consultant’s performance, which is retained at the Agency.
2. ESTIMATED SCHEDULE OF PROCUREMENT ACTIVITIES
|Issue Request for Proposals |03/16/2021 |
|Question & answer period |03/16-04/05/2021 |
|Proposals due |04/06/2021 |
|Evaluate proposals |04/07-04/12/2021 |
|Conduct oral interviews with finalists |04/14-04/15/2021 |
|Announce “Apparent Successful Contractor” and send notification via fax or e-mail to |04/16/2021 |
|unsuccessful proposers | |
|Begin contract work |04/19/2021 |
The AGENCY reserves the right to revise the above schedule.
2.3 SUBMISSION OF PROPOSALS
All proposals must be submitted electronically.
The proposal must be received by the RFQ/RFP Coordinator no later than 5:00 p.m., Pacific Standard Time, in Olympia, Washington, on April 6, 2021.
Proposals must be submitted electronically as an attachment to an e-mail to Betty Young, the RFQ/RFP Coordinator, at the e-mail address listed in Section 2.1. Attachments to e-mail shall be in Microsoft Word format or PDF. Zipped files cannot be received by the AGENCY and cannot be used for submission of proposals. The cover submittal letter and the Certifications and Assurances form must have a scanned signature of the individual within the organization authorized to bind the Consultant to the offer. The AGENCY does not assume responsibility for problems with Consultant’s e-mail. If the AGENCY’S email is not working, appropriate allowances will be made.
Late proposals will not be accepted and will be automatically disqualified from further consideration, unless the AGENCY’S e-mail is found to be at fault. All proposals and any accompanying documentation become the property of the AGENCY and will not be returned.
2.4 PROPRIETARY INFORMATION/PUBLIC DISCLOSURE
Proposals submitted in response to this competitive procurement shall become the property of the AGENCY. All proposals received shall remain confidential until the contract, if any, resulting from this RFQ/RFP is signed by the Executive Director of the AGENCY, or their Designee, and the apparent successful Contractor; thereafter, the proposals shall be deemed public records as defined in Chapter 42.56 of the Revised Code of Washington (RCW).
Any information in the proposal that the Consultant desires to claim as proprietary and exempt from disclosure under the provisions of Chapter 42.56 RCW, or other state or federal law that provides for the nondisclosure of your document, must be clearly designated. The information must be clearly identified and the particular exemption from disclosure upon which the Consultant is making the claim must be cited. Each page containing the information claimed to be exempt from disclosure must be clearly identified by the words “Proprietary Information” printed on the lower right hand corner of the page. Marking the entire proposal exempt from disclosure or as Proprietary Information will not be honored.
If a public records request is made for the information that the Consultant has marked as "Proprietary Information," the AGENCY will notify the Consultant of the request and of the date that the records will be released to the requester unless the Consultant obtains a court order enjoining that disclosure. If the Consultant fails to obtain the court order enjoining disclosure, the AGENCY will release the requested information on the date specified. If a Consultant obtains a court order from a court of competent jurisdiction enjoining disclosure pursuant to Chapter 42.56 RCW, or other state or federal law that provides for nondisclosure, the AGENCY shall maintain the confidentiality of the Consultant's information per the court order.
A charge will be made for copying and shipping, as outlined in RCW 42.56. No fee shall be charged for inspection of contract files, but twenty-four (24) hours’ notice to the RFQ/RFP Coordinator is required. All requests for information should be directed to the RFQ/RFP Coordinator.
5. REVISIONS TO THE RFQ/RFP
In the event it becomes necessary to revise any part of this RFQ/RFP, addenda will be provided via e-mail to all individuals, who have made the RFQ/RFP Coordinator aware of their interest. Addenda will also be published at , Rail News and Notices. For this purpose, the published questions and answers and any other pertinent information shall be provided as an addendum to the RFQ/RFP and will be placed on the website.
If you downloaded this RFQ/RFP from the Agency website located at: , Rail News and Notices, you are responsible for sending your name, e-mail address, and telephone number to the RFQ/RFP Coordinator in order for your organization to receive any RFQ/RFP addenda.
The AGENCY also reserves the right to cancel or to reissue the RFQ/RFP, in whole or in part, prior to execution of a contract.
6. FEDERAL AND STATE REQUIREMENTS
Americans With Disabilities Act (ADA) Requirements
The Consultant must comply with the Americans With Disabilities Act of 1990, Public Law 101-336, also referred to as the ADA 28 CFR Part 35, which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications.
Federal Equal Employment Opportunity (EEO) Requirements
The contract proposed in the RFQ/RFP will be federally funded. As a result, all phases of the project will be held to Federal EEO requirements. See EEO website at for more information.
Disadvantaged Business Enterprise (DBE) Participation
The UTC in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation, subtitle A, Office of the Secretary, Part 21, nondiscrimination in federally assisted programs of the Department of Transportation issued pursuant to such Act, hereby notifies all bidders that it will affirmatively ensure that in any contract entered into pursuant to this advertisement, disadvantaged business enterprises as defined at 49 CFR Part 26 will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, national origin or sex in consideration for an award.
The established goals for DBE participation is 10%. For information on certified firms, consultants may contact OMWBE at (360)753-9693 or .
Executive Order 18-03 – Supporting Workers’ Rights
Pursuant to RCW 39.26.160(3) (best value criteria) and consistent with Executive Order 18-03 – Supporting Worers’ Rights to Effectively Address Workplace Violations (dated June 12, 2018), the AGENCY will evaluate bids for best value and provide a bid preference in the amount of 5 points to any bidder who certifies, pursuant to the certification attached as Exhibit D – Contractor Certification for Executive Order 18-03 – Workers’ Rights, that their firm does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waiver.
7. RESPONSIVENESS
All proposals will be reviewed by the RFQ/RFP Coordinator to determine compliance with administrative requirements and instructions specified in this RFQ/RFP. The Consultant is specifically notified that failure to comply with any part of the RFQ/RFP may result in rejection of the proposal as non-responsive.
The AGENCY also reserves the right at its sole discretion to waive minor administrative irregularities.
8. MOST QUALIFIED TERMS
The AGENCY reserves the right to make an award without further discussion of the proposal submitted. Therefore, the proposal should be submitted initially on the most qualified terms which the Consultant can propose. There will be no best and final offer procedure. The AGENCY reserves the right to contact a Consultant for clarification of its proposal.
The Apparent Successful Contractor should be prepared to accept this RFQ/RFP for incorporation into a contract resulting from this RFQ/RFP. Contract negotiations may incorporate some or all of the Consultant’s proposal. It is understood that the proposal will become a part of the official procurement file on this matter without obligation to the AGENCY.
9. CONTRACT AND GENERAL TERMS & CONDITIONS
The apparent successful contractor will be expected to enter into a contract which is substantially the same as the sample contract and its general terms and conditions attached as Exhibit B. In no event is a Consultant to submit its own standard contract terms and conditions in response to this solicitation. The Consultant may submit exceptions as allowed in the Certifications and Assurances form, Exhibit A to this solicitation. All exceptions to the contract terms and conditions must be submitted as an attachment to Exhibit A, Certifications and Assurances form. The AGENCY will review requested exceptions and accept or reject the same at its sole discretion.
10. COSTS TO PROPOSE
The AGENCY will not be liable for any costs incurred by the Consultant in preparation of a proposal submitted in response to this RFQ/RFP, in conduct of a presentation, or any other activities related to responding to this RFQ/RFP.
11. NO OBLIGATION TO CONTRACT
This RFQ/RFP does not obligate the state of Washington or the AGENCY to contract for services specified herein.
12. REJECTION OF PROPOSALS
The AGENCY reserves the right at its sole discretion to reject any and all proposals received, without penalty, and not to issue a contract as a result of this RFQ/RFP.
13. COMMITMENT OF FUNDS
The Executive Director of the AGENCY or their delegate is the only individual who may legally commit the AGENCY to the expenditures of funds for a contract resulting from this RFQ/RFP. No cost chargeable to the proposed contract may be incurred before receipt of a fully executed contract.
14. PAYMENT
The state of Washington prefers to use electronic payment in its transactions. The successful contractor will be provided a form to complete with the contract to authorize such payment method. Payment will only be made for invoices that include:
a. The name of all employees who worked during the billing period.
b. Classification of each employee, hours worked, hourly payroll rate, and amount billed.
c. Non-salary costs, supported by copies of invoices.
15. INSURANCE COVERAGE
The Contractor is to furnish the Agency with a certificate(s) of insurance executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements set forth below.
The Contractor shall, at its own expense, obtain and keep in force insurance coverage which shall be maintained in full force and effect during the term of the contract. The Contractor shall furnish evidence in the form of a Certificate of Insurance that insurance shall be provided, and a copy shall be forwarded to the Agency within fifteen (15) days of the contract effective date.
Liability Insurance
1) Commercial General Liability Insurance: Contractor shall maintain commercial general liability (CGL) insurance and, if necessary, commercial umbrella insurance, with a limit of not less than $1,000,000 per each occurrence. If CGL insurance contains aggregate limits, the General Aggregate limit shall be at least twice the “each occurrence” limit. CGL insurance shall have products-completed operations aggregate limit of at least two times the “each occurrence” limit. CGL insurance shall be written on ISO occurrence from CG 00 01 (or a substitute form providing equivalent coverage). All insurance shall cover liability assumed under an insured contract (including the tort liability of another assumed in a business contract), and contain separation of insured’s (cross liability) condition.
Additionally, the Contractor is responsible for ensuring that any subcontractors provide adequate insurance coverage for the activities arising out of subcontracts.
2) Business Auto Policy: As applicable, the Contractor shall maintain business auto liability and, if necessary, commercial umbrella liability insurance with a limit not less than $1,000,000 per accident. Such insurance shall cover liability arising out of “Any Auto.” Business auto coverage shall be written on ISO form CA 00 01, 1990 or later edition, or substitute liability form providing equivalent coverage.
Employers Liability (“Stop Gap”) Insurance: In addition, the Contractor shall buy employers liability insurance and, if necessary, commercial umbrella liability insurance with limits not less than $1,000,000 each accident for bodily injury by accident or $1,000,000 each employee for bodily injury by disease.
Additional Provisions
Above insurance policy shall include the following provisions:
1. Additional Insured. The state of Washington, Utilities and Transportation Commission, its elected and appointed officials, agents and employees shall be named as an additional insured on all general liability, excess, umbrella and property insurance policies. All insurance provided in compliance with this contract shall be primary as to any other insurance or self-insurance programs afforded to or maintained by the state.
2. Cancellation. State of Washington, Utilities and Transportation Commission, shall be provided written notice before cancellation or non-renewal of any insurance referred to therein, in accord with the following specifications. Insurers subject to 48.18 RCW (Admitted and Regulation by the Insurance Commissioner): The insurer shall give the state 45 days advance notice of cancellation or non-renewal. If cancellation is due to non-payment of premium, the state shall be given 10 days advance notice of cancellation. Insurers subject to 48.15 RCW (Surplus lines): The state shall be given 20 days advance notice of cancellation. If cancellation is due to non-payment of premium, the state shall be given 10 days advance notice of cancellation.
3. Identification. Policy must reference the state’s contract number and the agency name.
4. Insurance Carrier Rating. All insurance and bonds should be issued by companies admitted to do business within the state of Washington and have a rating of A-, Class VII or better in the most recently published edition of Best’s Reports. Any exception shall be reviewed and approved by the Utilities and Transportation Commission’s Risk Manager, or the Risk Manager for the state of Washington, before the contract is accepted or work may begin. If an insurer is not admitted, all insurance policies and procedures for issuing the insurance policies must comply with Chapter 48.15 RCW and 284-15 WAC
5. Excess Coverage. By requiring insurance herein, the state does not represent that coverage and limits will be adequate to protect Contractor, and such coverage and limits shall not limit Contractor’s liability under the indemnities and reimbursements granted to the state in this contract.
Workers’ Compensation Coverage
The Contractor will at all times comply with all applicable workers’ compensation, occupational disease, and occupational health and safety laws, statutes, and regulations to the full extent applicable. The state will not be held responsible in any way for claims filed by the Contractor or their employees for services performed under the terms of this contract.
3. PROPOSAL CONTENTS
All proposals must be submitted electronically.
Proposals must be written in English and submitted electronically to the RFQ/RFP Coordinator in the order noted below:
1. Letter of Submittal, including signed Certifications and Assurances (Exhibit A to this RFQ/RFP);
2. Description of how the Consultant meets the minimum qualifications;
3. Technical proposal;
4. Management proposal; and,
5. Cost proposal.
Proposals must provide information in the same order as presented in this document with the same headings. This will not only be helpful to the evaluators of the proposal, but should assist the Consultant in preparing a thorough response.
Items marked “mandatory” must be included as part of the proposal for the proposal to be considered responsive, however, these items are not scored. Items marked “scored” are those that are awarded points as part of the evaluation conducted by the evaluation team.
1. LETTER OF SUBMITTAL (MANDATORY)
The Letter of Submittal and the attached Certifications and Assurances form (Exhibit A to this RFQ/RFP) must be signed and dated by a person authorized to legally bind the Consultant to a contractual relationship, e.g., the President or Executive Director if a corporation, the managing partner if a partnership, or the proprietor if a sole proprietorship. Along with introductory remarks, the Letter of Submittal is to include by attachment the following information about the Consultant and any proposed subcontractors:
1. Name, address, principal place of business, telephone number, and fax number/e-mail address of legal entity or individual with whom contract would be written.
2. Name, address, and telephone number of each principal officer (President, Vice President, Treasurer, Chairperson of the Board of Directors, etc.).
3. Legal status of the Consultant (sole proprietorship, partnership, corporation, etc.) and the year the entity was organized to do business as the entity now substantially exists.
4. Federal Employer Tax Identification number or Social Security number and the Washington Uniform Business Identification (UBI) number issued by the state of Washington Department of Revenue. If the Consultant does not have a UBI number, the Consultant must state that it will become licensed in Washington within thirty (30) calendar days of being selected as the Apparently Successful Contractor.
5. Location of the facility from which the Consultant would operate.
6. Identify any state employees or former state employees employed or on the firm’s governing board as of the date of the proposal. Include their position and responsibilities within the Consultant’s organization. If following a review of this information, it is determined by the AGENCY that a conflict of interest exists, the Consultant may be disqualified from further consideration for the award of a contract.
2. DESCRIPTION OF HOW THE CONSULTANT MEETS THE MINIMUM QUALIFICATIONS (MANDATORY)
A. The RFQ/RFP must describe how the Consultant is Licensed to do business in the State of Washington or that it will become licensed in Washington within thirty (30) calendar days of being selected as the Apparently Successful Contractor.
B. The RFQ/RFP must clearly describe the Consultant’s experience that meets the following qualifications:
o Minimum of five years experience providing consulting services that include analytical studies and surveys, data collection, and data/trend analysis and modeling.
o Minimum of five years experience providing consulting services that include project management and developing action plans, goals, and strategies.
o Minimum of three years experience consulting on railroad issues including, but not limited to, rail crossing safety, rail incident and corridor analysis, railroad crossing safety evaluation, railroad crossing improvement projects, or rail engineering.
o Minimum of three years experience providing consulting services that include stakeholder outreach and engagement, public involvement.
3. ADDITIONAL RELEVANT EXPERIENCE (MANDATORY)
A. Indicate other relevant experience that indicates the qualifications of the Consultant, and any subcontractors, for the performance of the potential contract.
B. Include a list of contracts the Consultant has had during the last five years that relate to the Consultant’s ability to perform the services needed under this RFQ/RFP. List contract reference numbers, contract period of performance, contact persons, telephone numbers, and fax numbers/e-mail addresses.
4. TECHNICAL PROPOSAL (SCORED)
The Technical Proposal must contain a comprehensive description of services including the following elements:
A. Project Approach/Methodology – Include a complete description of the Consultant’s proposed approach and methodology for the project. This section should convey Consultant’s understanding of the proposed project.
B. Work Plan - Include all project requirements and the proposed tasks, services, activities, etc. necessary to accomplish the scope of the project defined in this RFQ/RFP. This section of the technical proposal must contain sufficient detail to convey to members of the evaluation team the Consultant’s knowledge of the subjects and skills necessary to successfully complete the project. Include any required involvement of AGENCY staff. The Consultant may also present any creative approaches that might be appropriate and may provide any pertinent supporting documentation.
C. Project Schedule - Include a project schedule indicating when the elements of the work will be completed. Project schedule must ensure that any deliverables requested are met.
D. Outcomes and Performance Measurement – Describe the impacts/outcomes the Consultant proposes to achieve as a result of the delivery of these services including how these outcomes would be monitored, measured and reported to the state agency.
E. Risks - The Consultant must identify potential risks that are considered significant to the success of the project. Include how the Consultant would propose to effectively monitor and manage these risks, including reporting of risks to the AGENCY’S contract manager.
F. Deliverables – Fully describe deliverables to be submitted under the proposed contract. Deliverables must support the requirements set forth in Section 1.2, Objectives and Scope of Work.
5. MANAGEMENT PROPOSAL
A. Project Management (SCORED)
1. Project Team Structure/Internal Controls - Provide a description of the proposed project team structure and internal controls to be used during the course of the project, including any subcontractors. Provide an organizational chart of your firm indicating lines of authority for personnel involved in performance of this potential contract and relationships of this staff to other programs or functions of the firm. This chart must also show lines of authority to the next senior level of management. Include who within the firm will have prime responsibility and final authority for the work.
2. Staff Qualifications/Experience - Identify staff, including subcontractors, who will be assigned to the potential contract, indicating the responsibilities and qualifications of such personnel, and include the amount of time each will be assigned to the project. Provide resumes for the named staff, which include information on the individual’s particular skills related to this project, education, experience, significant accomplishments and any other pertinent information. The Consultant must commit that staff identified in its proposal will actually perform the assigned work. Any staff substitution must have the prior approval of the AGENCY.
3. Executive Order 18-03 Certification – Your response must certify whether whether or not your firm requires its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. This certification is provided as Exhibit D.
C. Related Information (MANDATORY)
1. If the Consultant or any subcontractor contracted with the state of Washington during the past 24 months, indicate the name of the agency, the contract number and project description and/or other information available to identify the contract.
2. If the Consultant’s staff or subcontractor’s staff was an employee of the state of Washington during the past 24 months, or is currently a Washington State employee, identify the individual by name, the agency previously or currently employed by, job title or position held and separation date.
3. If the Consultant has had a contract terminated for default in the last five years, describe such incident. Termination for default is defined as notice to stop performance due to the Consultant’s non-performance or poor performance and the issue of performance was either (a) not litigated due to inaction on the part of the Proposer, or (b) litigated and such litigation determined that the Proposer was in default.
4. Submit full details of the terms for default including the other party's name, address, and phone number. Present the Consultant’s position on the matter. The AGENCY will evaluate the facts and may, at its sole discretion, reject the proposal on the grounds of the past experience. If no such termination for default has been experienced by the Consultant in the past five years, so indicate.
D. References (MANDATORY)
List names, addresses, telephone numbers, and fax numbers/e-mail addresses of three (3) business references for the Consultant and three (3) business references for the lead staff person for whom work has been accomplished and briefly describe the type of service provided. Do not include current AGENCY staff as references. By submitting a proposal in response to this Work Request, the vendor and team members grant permission to AGENCY to contact these references and others, who from AGENCY’s perspective, may have pertinent information. AGENCY may or may not, at AGENCY’s discretion, contact references. The AGENCY may evaluate references at the AGENCY’S discretion.
E. OMWBE and/or DBE Certification (OPTIONAL AND NOT SCORED)
Include proof of certification issued by the Washington State Office of Minority and Womens Business Enterprises (OMWBE) if certified minority-owned firm, women-owned firm, or Disadvantaged Business Enterprise firm(s) will be participating on this project. For information: .
6. COST PROPOSAL
The maximum fee for this contract must be Six Hundred Thousand Dollars ($600,000) or less to be considered responsive to this RFQ/RFP.
The evaluation process is designed to award this procurement not necessarily to the Consultant of least cost, but rather to the Consultant whose proposal best meets the requirements of this RFQ/RFP. However, Consultants are encouraged to submit proposals which are consistent with state government efforts to conserve state resources.
A. Identification of Costs
Identify all costs in U.S. dollars including expenses to be charged for performing the services necessary to accomplish the objectives of the contract. The Consultant is to submit a fully detailed budget including staff costs and any expenses necessary to accomplish the tasks and to produce the deliverables under the contract. All costs must be evidenced by a rate sheet submitted with the RFQ/RFP. The rate sheet must include salary rates by position, any benefits charged as an add-on to salary rates, any rates for foreseeable chargeable expenses, and the indirect cost rate the Consultant intends to apply.
Consultants are required to collect and pay Washington state sales and use taxes, as applicable.
Costs for subcontractors are to be broken out separately. Please note if any subcontractors are certified by the Office of Minority and Women’s Business Enterprises.
B. Computation
The score for the cost proposal will be computed by dividing the lowest cost bid received by the Consultant’s total cost. Then the resultant number will be multiplied by the maximum possible points for the cost section.
4. EVALUATION AND CONTRACT AWARD
1. EVALUATION PROCEDURE
Responsive proposals will be evaluated strictly in accordance with the requirements stated in this solicitation and any addenda issued. The evaluation of proposals shall be accomplished by an evaluation team(s), to be designated by the AGENCY, which will determine the ranking of the proposals.
AGENCY, at its sole discretion, may elect to select the top-scoring firms as finalists for an oral presentation.
The RFQ/RFP Coordinator may contact the Consultant for clarification of any portion of the Consultant’s proposal.
2. EVALUATION WEIGHTING AND SCORING
The following weighting and points will be assigned to the proposal for evaluation purposes:
|Technical Proposal – 60% |60 points |
|Category Maximum Awarded | |
|Project Approach/Methodology 20 points | |
|Quality of Work Plan 20 points | |
|Project Schedule 10 points | |
|Project Deliverables 10 points | |
|Management Proposal – 40% |40 points |
|Category Maximum Awarded | |
|Project Team Structure and | |
|Internal Controls 10 points | |
|Staff Qualifications/Experience 10 points | |
|Experience of the Consultant 15 points | |
|Executive Order 18-03 5 points | |
| | |
| | |
|TOTAL |100 POINTS |
AGENCY reserves the right to award the contract to the Consultant whose proposal is deemed to be in the best interest of the AGENCY and the state of Washington.
3. ORAL PRESENTATIONS WILL BE REQUIRED
The AGENCY will, after evaluating the written proposals, schedule oral presentations of the finalists. The AGENCY will contact the top-scoring firm(s) from the written evaluation to schedule a date, time and location. Commitments made by the Consultant at the oral interview, if any, will be considered binding.
The oral presentation will assist in determining the apparent successful contractor.
4. NOTIFICATION TO PROPOSERS
The AGENCY will notify the Apparently Successful Contractor of their selection in writing, through email, upon completion of the evaluation process. Individuals or firms whose proposals were not selected for further negotiation or award will be notified separately by e-mail.
5. DEBRIEFING OF UNSUCCESSFUL PROPOSERS
Any Consultant who has submitted a proposal and been notified that they were not selected for contract award may request a debriefing. The request for a debriefing conference must be received by the RFQ/RFP Coordinator within three (3) business days after the Unsuccessful Consultant Notification is e-mailed or faxed to the Consultant. Debriefing requests must be received by the RFQ/RFP Coordinator no later than 5:00 PM, local time, in Olympia, Washington on the third business day following the transmittal of the Unsuccessful Consultant Notification. The debriefing must be held within three (3) business days of the request.
Discussion at the debriefing conference will be limited to the following:
• Evaluation and scoring of the firm’s proposal;
• Critique of the proposal based on the evaluation;
• Review of proposer’s final score in comparison with other final scores without identifying the other firms.
Comparisons between proposals or evaluations of the other proposals will not be allowed. Debriefing conferences may be conducted on the telephone or by virtual meeting and will be scheduled for a maximum of one hour.
6. PROTEST PROCEDURE
Protests may be made only by Consultants who submitted a response to this solicitation document and who have participated in a debriefing conference. Upon completing the debriefing conference, the Consultant is allowed three (3) business days to file a protest of the acquisition with the RFQ/RFP Coordinator. Protests must be received in electronic format, through email, by the RFQ/RFP Coordinator no later than 5:00 p.m., Pacific Time, on the third business day following the debriefing.
Consultants protesting this procurement shall follow the procedures described below. Protests that do not follow these procedures shall not be considered. This protest procedure constitutes the sole administrative remedy available to Consultants under this procurement.
All protests must be in writing, addressed to the RFQ/RFP Coordinator, and signed by the protesting party or an authorized Agent. The protest must state the RFQ/RFP number, the grounds for the protest with specific facts and complete statements of the action(s) being protested. A description of the relief or corrective action being requested should also be included.
Only protests stipulating an issue of fact concerning the following subjects shall be considered:
• A matter of bias, discrimination or conflict of interest on the part of an evaluator;
• Errors in computing the score;
• Non-compliance with procedures described in the procurement document or AGENCY policy.
Protests not based on procedural matters will not be considered. Protests will be rejected as without merit if they address issues such as: 1) an evaluator’s professional judgment on the quality of a proposal, or 2) AGENCY’S assessment of its own and/or other agencies needs or requirements.
Upon receipt of a protest, a protest review will be held by the AGENCY. The AGENCY’s Executive Director or an employee delegated by the Executive Director who was not involved in the procurement will consider the record and all available facts and issue a decision within five (5) business days of receipt of the protest. If additional time is required, the protesting party will be notified of the delay.
In the event a protest may affect the interest of another Consultant that also submitted a proposal, such Consultant will be given an opportunity to submit its views and any relevant information on the protest to the RFQ/RFP Coordinator.
The final determination of the protest shall:
• Find the protest lacking in merit and uphold the AGENCY’s action; or
• Find only technical or harmless errors in the AGENCY’s acquisition process and determine the AGENCY to be in substantial compliance and reject the protest; or
• Find merit in the protest and provide the AGENCY options which may include:
-- Correct the errors and re-evaluate all proposals, and/or
--Reissue the solicitation document and begin a new process, or
--Make other findings and determine other courses of action as appropriate.
If the AGENCY determines that the protest is without merit, the AGENCY will enter into a contract with the apparently successful contractor. If the protest is determined to have merit, one of the alternatives noted in the preceding paragraph will be taken.
5. RFQ/RFP EXHIBITS
Exhibit A Certifications and Assurances
Exhibit B Personal Service Contract Format including General Terms and Conditions (GT&Cs)
Exhibit C State Action Plan Proposal
Exhibit D Executive Order 18-03 – Workers’ Rights Contractor Certification
EXHIBIT A
CERTIFICATIONS AND ASSURANCES
I/we make the following certifications and assurances as a required element of the proposal to which it is attached, understanding that the truthfulness of the facts affirmed here and the continuing compliance with these requirements are conditions precedent to the award or continuation of the related contract:
1. I/we declare that all answers and statements made in the proposal are true and correct.
2. The prices and/or cost data have been determined independently, without consultation, communication, or agreement with others for the purpose of restricting competition. However, I/we may freely join with other persons or organizations for the purpose of presenting a single proposal.
3. The attached proposal is a firm offer for a period of 60 days following receipt, and it may be accepted by the AGENCY without further negotiation (except where obviously required by lack of certainty in key terms) at any time within the 60-day period.
4. In preparing this proposal, I/we have not been assisted by any current or former employee of the state of Washington whose duties relate (or did relate) to this proposal or prospective contract, and who was assisting in other than his or her official, public capacity. If there are exceptions to these assurances, I/we have described them in full detail on a separate page attached to this document.
5. I/we understand that the AGENCY will not reimburse me/us for any costs incurred in the preparation of this proposal. All proposals become the property of the AGENCY, and I/we claim no proprietary right to the ideas, writings, items, or samples, unless so stated in this proposal.
6. Unless otherwise required by law, the prices and/or cost data which have been submitted have not been knowingly disclosed by the Proposer and will not knowingly be disclosed by him/her prior to opening, directly or indirectly, to any other Proposer or to any competitor.
7. I/we agree that submission of the attached proposal constitutes acceptance of the solicitation contents and the attached sample contract and general terms and conditions. If there are any exceptions to these terms, I/we have described those exceptions in detail on a page attached to this document.
8. No attempt has been made or will be made by the Proposer to induce any other person or firm to submit or not to submit a proposal for the purpose of restricting competition.
9. I/we grant the AGENCY the right to contact references and other, who may have pertinent information regarding the ability of the Consultant and the lead staff person to perform the services contemplated by this RFQ/RFP.
10. If any staff member(s) who will perform work on this contract has retired from the State of Washington under the provisions of the 2008 Early Retirement Factors legislation, his/her name(s) is noted on a separately attached page.
We (circle one) are/are not submitting proposed Contract exceptions. See Section 2.10, Contract and General Terms and Conditions. If Contract exceptions are submitted, we have attached them to this form.
On behalf of the Consultant submitting this proposal, my name below attests to the accuracy of the above statement. If electronic, also include: We are submitting a scanned signature of this form with our proposal.
| |
|Signature of Proposer |
|Title |Date |
EXHIBIT B (SAMPLE – SEE WSDOT FOR CURRENT CONTRACT)
Local Agency Professional Services Lump Sum Consultant Agreement
Agreement Number: Does this Require DES filing? Yes No
|Firm/Organization Legal Name (do not use dba’s): |
|Address |Federal Aid Number |
|UBI Number |Federal TIN |
|Execution Date |Completion Date |
|1099 Form Required |Federal Participation |
|Yes No |Yes No |
|Project Title |
|Description of Work |
|Yes % No DBE Participation |Maximum Amount Payable: |
|Yes % No MBE Participation | |
|Yes % No WBE Participation | |
|Yes % No SBE Participation | |
Index of Exhibits
Exhibit A Scope of Work
Exhibit B DBE Participation Plan
Exhibit C Preparation and Delivery of Electronic Engineering and Other Data
|Exhibit D |Prime Consultant Cost Computations |
|Exhibit E |Sub-consultant Cost Computations |
|Exhibit F |Title VI Assurances |
|Exhibit G |Certification Documents |
|Exhibit H |Liability Insurance Increase |
|Exhibit I |Alleged Consultant Design Error Procedures |
| | |
|Exhibit J |Consultant Claim Procedures |Agreement Number: |
THIS AGREEMENT, made and entered into as shown in the “Execution Date” box on page one (1) of this AGREEMENT, between the ,
hereinafter called the “AGENCY,” and the “Firm/Organization Name” referenced on page one (1) of this AGREEMENT, hereinafter called the “CONSULTANT.”
WHEREAS, the AGENCY desires to accomplish the work referenced in “Description of Work” on page one (1)
of this AGREEMENT and hereafter called the “SERVICES;” and does not have sufficient staff to meet the required commitment and therefore deems it advisable and desirable to engage the assistance of a CONSULTANT to provide the necessary SERVICES; and
WHEREAS, the CONSULTANT represents that they comply with the Washington State Statutes relating to professional registration, if applicable, and has signified a willingness to furnish consulting services to the AGENCY.
NOW, THEREFORE, in consideration of the terms, conditions, covenants, and performance contained herein, or attached and incorporated and made a part hereof, the parties hereto agree as follows:
General Description of Work
The work under this AGREEMENT shall consist of the above-described SERVICES as herein defined, and necessary to accomplish the completed work for this project. The CONSULTANT shall furnish all services, labor, and related equipment and, if applicable, sub-consultants and subcontractors necessary to conduct and complete the SERVICES as designated elsewhere in this AGREEMENT.
Scope of Work
The Scope of Work and projected level of effort required for these SERVICES is described in Exhibit “A” attached hereto and by this reference made a part of this AGREEMENT. The Scope of Work was developed utilizing performance based contracting methodologies.
General Requirements
All aspects of coordination of the work of this AGREEMENT with outside agencies, groups, or individuals shall receive advance approval by the AGENCY. Necessary contacts and meetings with agencies, groups, and/or individuals shall be coordinated through the AGENCY. The CONSULTANT shall attend coordination, progress, and presentation meetings with the AGENCY and/or such State, Federal, Community, City, or County officials, groups or individuals as may be requested by the AGENCY. The AGENCY will provide the CONSULTANT sufficient notice prior to meetings requiring CONSULTANT participation. The minimum required hours or days’ notice shall be agreed to between the AGENCY and the CONSULTANT and shown in Exhibit “A.”
The CONSULTANT shall prepare a monthly progress report, in a form approved by the AGENCY, which will outline in written and graphical form the various phases and the order of performance of the SERVICES in sufficient detail so that the progress of the SERVICES can easily be evaluated.
The CONSULTANT, any sub-consultants, and the AGENCY shall comply with all Federal, State, and local laws, rules, codes, regulations, and all AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington.
Agreement Number:
Participation for Disadvantaged Business Enterprises (DBE) or Small Business Enterprises (SBE), if required, per 49 CFR Part 26 shall be shown on the heading of this AGREEMENT. If DBE firms are utilized at the commencement of this AGREEMENT, the amounts authorized to each firm and their certification number will be shown on Exhibit “B” attached hereto and by this reference made part of this AGREEMENT. If the Prime CONSULTANT is a DBE certified firm they must comply with the Commercial Useful Function (CUF) regulation outlined in the AGENCY’s “DBE Program Participation Plan” and perform a minimum of 30% of the total amount of this AGREEMENT. It is recommended, but not required, that non-DBE Prime CONSULTANTS perform a minimum of 30% of the total amount of this AGREEMENT.
In the absence of a mandatory UDBE, the Consultant shall continue their outreach efforts to provide SBE firms
maximum practicable opportunities.
The CONSULTANT, on a monthly basis, shall enter the amounts paid to all firms involved with this AGREEMENT into the wsdot. program. Payment information shall identify any DBE Participation. Non-minority, woman owned DBEs does not count towards UDBE goal attainment.
All Reports, PS&E materials, and other data furnished to the CONSULTANT by the AGENCY shall be returned. All electronic files, prepared by the CONSULTANT, must meet the requirements as outlined in Exhibit “C – Preparation and Delivery of Electronic Engineering and other Data.”
All designs, drawings, specifications, documents, and other work products, including all electronic files, prepared by the CONSULTANT prior to completion or termination of this AGREEMENT are instruments of service for these SERVICES, and are the property of the AGENCY. Reuse by the AGENCY or by others, acting through or on behalf of the AGENCY of any such instruments of service, not occurring as a part of this SERVICE, shall be without liability or legal exposure to the CONSULTANT.
Any and all notices or requests required under this AGREEMENT shall be made in writing and sent to the other party by (i) certified mail, return receipt requested, or (ii) by email or facsimile, to the address set forth below:
|If to AGENCY: | | |If to CONSULTANT: | |
|Name: | | |Name: | | |
|Agency: | | |Agency: | | |
|Address: | | |Address: | | |
|City: |State: |Zip: |City: |State: |Zip: |
|Email: | | |Email: | | |
|Phone: | | |Phone: | | |
|Facsimile: | | |Facsimile: | | |
Time for Beginning and Completion
The CONSULTANT shall not begin any work under the terms of this AGREEMENT until authorized in writing by the AGENCY. This AGREEMENT may require filing with the Department of Enterprise Services (DES) pursuant to RCW 39.26.140. If such approval is required by DES, this AGREEMENT shall not bind the AGENCY until approved by DES. If the AGREEMENT must be approved by DES, work cannot begin, nor payment made until ten (10) or more working days following the date of filing, and until approved by DES. Any subsequent SUPPLEMENTAL AGREEMENT may also be subject to filing and/or approval from DES. All work under this AGREEMENT shall be completed by the date shown in the heading of this AGREEMENT titled “Completion Date.”
The established completion time shall not be extended because of any delays attributable to the CONSULTANT, but may be extended by the AGENCY in the event of a delay attributable to the AGENCY, or because of unavoidable delays caused by an act of GOD, or governmental actions, or other conditions beyond the control of the CONSULTANT. A prior supplemental AGREEMENT issued by the AGENCY is required to extend the established completion time. Agreement Number:
Payment Provisions
The CONSULTANT shall be paid by the AGENCY for completed SERVICES rendered under this AGREEMENT as provided hereinafter. Such payment shall be full compensation for SERVICES performed or SERVICES rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete SERVICES.
The CONSULTANT shall conform to all applicable portions of 48 CFR Part 31 (). The estimate in support of the lump sum amount is attached hereto as Exhibits “D”and “E” and by this reference made part of this AGREEMENT.
A. Lump Sum Agreement: Payment for all consulting SERVICES shall be on the basis of a lump sum amount as shown on page one (1) of this AGREEMENT.
B. Maximum Amount Payable: The Maximum Total Amount Payable by the AGENCY to the CONSULTANT under this AGREEMENT shall not exceed the amount shown in the heading of this AGREEMENT on page one (1.) The Maximum Amount Payable does not include payment for extra work as stipulated in section XIII, “Extra Work.” No minimum amount payable is guaranteed under this AGREEMENT.
C. Monthly Progress Payments: The CONSULTANT may submit billings to the AGENCY for reimbursement of costs on a monthly basis. To provide a means of verifying the billed salary costs for the CONSULTANT’s employees, the AGENCY may conduct employee interviews. These interviews may consist of recording the names, titles, salary rates, and present duties of those employees performing work on the SERVICES at the time of the interview.
D. Final Payment: Final Payment of any balance due the CONSULTANT of the gross amount earned will be made promptly upon its verification by the AGENCY after the completion of the SERVICES under this AGREEMENT, contingent, if applicable, upon receipt of all PS&E, plans, maps, notes, reports, electronic data, and other related documents which are required to be furnished under this AGREEMENT. Acceptance of such Final Payment by the CONSULTANT shall constitute a release of all claims for payment, which the CONSULTANT may have against the AGENCY unless such claims are specifically reserved in writing and transmitted to the AGENCY by the CONSULTANT prior to its acceptance. Said Final Payment shall not, however, be a bar to any claims that the AGENCY may have against the CONSULTANT or to any remedies the AGENCY may pursue with respect to such claims.
The payment of any billing will not constitute agreement as to the appropriateness of any item and at the time of final audit all required adjustments will be made and reflected in a final payment. In the event that such final audit reveals an overpayment to the CONSULTANT, the CONSULTANT will refund such overpayment to
the AGENCY within thirty (30) calendar days of notice of the overpayment. Such refund shall not constitute a waiver by the CONSULTANT for any claims relating to the validity of a finding by the AGENCY of overpayment. Per the WSDOT’s “Audit Guide for Consultants,” Chapter 23 “Resolution Procedures,” the CONSULTANT has twenty (20) working days after receipt of the final Post Audit to begin the appeal process to the AGENCY for audit findings.
E. Inspection of Cost Records: The CONSULTANT and their sub-consultants shall keep available for inspection by representatives of the AGENCY and the United States, for a period of six (6) years after receipt of final payment, the cost records and accounts pertaining to this AGREEMENT and all items related to or bearing upon these records with the following exception: if any litigation, claim or audit arising out of, in connection with,
or related to this AGREEMENT is initiated before the expiration of the six (6) year period, the cost records and accounts shall be retained until such litigation, claim, or audit involving the records is completed.
A post audit may be performed on this AGREEMENT. The audit, if any, will be performed by the State Auditor, WSDOT’s Internal Audit Office and /or at the request of the AGENCY’s Project Manager .
Sub-Contracting
The AGENCY permits subcontracts for those items of SERVICES as shown in Exhibit “A” attached hereto and by this reference made part of this AGREEMENT.
The CONSULTANT shall not subcontract for the performance of any SERVICE under this AGREEMENT without prior written permission of the AGENCY. No permission for subcontracting shall create, between the AGENCY and sub-consultant, any contract or any other relationship.
Compensation for this sub-consultant SERVICES shall be based on the cost factors shown on Exhibit “E” attached hereto and by this reference made part of this AGREEMENT.
All reimbursable direct labor, indirect cost rate, direct non-salary costs and fixed fee costs for the sub-consultant shall be negotiated and substantiated in accordance with section V “Payment Provisions” herein and shall be memorialized in a final written acknowledgement between the parties.
All subcontracts shall contain all applicable provisions of this AGREEMENT, and the CONSULTANT shall require each sub-consultant or subcontractor, of any tier, to abide by the terms and conditions of this AGREEMENT. With respect to sub-consultant payment, the CONSULTANT shall comply with all applicable sections of the STATE’s Prompt Payment laws as set forth in RCW 39.04.250 and RCW 39.76.011.
The CONSULTANT, sub-recipient, or sub-consultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this AGREEMENT. The CONSULTANT shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by the CONSULTANT to carry out these requirements is a material breach of this AGREEMENT, which may result in the termination of this AGREEMENT or such other remedy as the recipient deems appropriate.
Employment and Organizational Conflict of Interest
The CONSULTANT warrants that they have not employed or retained any company or person, other than a bona fide employee working solely for the CONSULTANT, to solicit or secure this contract, and that it has not paid or agreed to pay any company or person, other than a bona fide employee working solely for the CONSULTANT, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or making of this contract. For breach or violation of this warrant, the AGENCY shall have the right to annul this AGREEMENT without liability or, in its discretion, to deduct from the AGREEMENT price or consideration or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee.
Any and all employees of the CONSULTANT or other persons while engaged in the performance of any work or services required of the CONSULTANT under this AGREEMENT, shall be considered employees of the CONSULTANT only and not of the AGENCY, and any and all claims that may arise under any Workmen’s Compensation Act on behalf of said employees or other persons while so engaged, and any and all claims made by a third party as a consequence of any act or omission on the part of the CONSULTANT’s employees or other
persons while so engaged on any of the work or services provided to be rendered herein, shall be the sole obligation and responsibility of the CONSULTANT.
The CONSULTANT shall not engage, on a full- or part-time basis, or other basis, during the period of this AGREEMENT, any professional or technical personnel who are, or have been, at any time during the period of this AGREEMENT, in the employ of the United States Department of Transportation or the AGENCY, except regularly retired employees, without written consent of the public employer of such person if he/she will be working on this AGREEMENT for the CONSULTANT.
Nondiscrimination
During the performance of this AGREEMENT, the CONSULTANT, for itself, its assignees, sub-consultants, subcontractors and successors in interest, agrees to comply with the following laws and regulations:
• Title VI of the Civil Rights Act of 1964 • Civil Rights Restoration Act of 1987 (42 U.S.C. Chapter 21 Subchapter V § 2000d (Public Law 100-259)
through 2000d-4a) • American with Disabilities Act of 1990
• Federal-aid Highway Act of 1973 (42 U.S.C. Chapter 126 § 12101 et. seq.) (23 U.S.C. Chapter 3 § 324) • 23 CFR Part 200
• Rehabilitation Act of 1973 • 49 CFR Parts 21 and 26
(29 U.S.C. Chapter 16 Subchapter V § 794)
• Age Discrimination Act of 1975
(42 U.S.C. Chapter 76 § 6101 et. seq.)
• RCW 49.60.180
In relation to Title VI of the Civil Rights Act of 1964, the CONSULTANT is bound by the provisions of Exhibit “F” attached hereto and by this reference made part of this AGREEMENT, and shall include the attached Exhibit “F” in every sub-contract, including procurement of materials and leases of equipment, unless exempt by the Regulations or directives issued pursuant thereto.
Termination of Agreement
The right is reserved by the AGENCY to terminate this AGREEMENT at any time with or without cause upon ten
(10) days written notice to the CONSULTANT.
In the event this AGREEMENT is terminated by the AGENCY, other than for default on the part of the CONSULTANT, a final payment shall be made to the CONSULTANT which, when added to any payments previously made, shall total the same percentage of the Lump Sum Amount as the work completed at the time of termination is to the total work required for the SERVICES. In addition, the CONSULTANT shall be paid for any authorized extra work completed.
No payment shall be made for any SERVICES completed after ten (10) days following receipt by the CONSULTANT of the notice to terminate. If the accumulated payment made to the CONSULTANT prior to Notice of Termination exceeds the total amount that would be due when computed as set forth in paragraph two (2) of this section, then no final payment shall be due and the CONSULTANT shall immediately reimburse the AGENCY for any excess paid.
If the services of the CONSULTANT are terminated by the AGENCY for default on the part of the CONSULTANT, the above formula for payment shall not apply.
In the event of a termination for default, the amount to be paid to the CONSULTANT shall be determined by the AGENCY with consideration given to the actual costs incurred by the CONSULTANT in performing SERVICES to the date of termination, the amount of SERVICES originally required which was satisfactorily completed to date of termination, whether that SERVICE is in a form or a type which is usable to the AGENCY at the time of termination, the cost to the AGENCY of employing another firm to complete the SERVICES required and the time which may be required to do so, and other factors which affect the value to the AGENCY of the SERVICES
performed at the time of termination. Under no circumstances shall payment made under this subsection exceed the amount, which would have been made using the formula set forth in paragraph two (2) of this section.
If it is determined for any reason that the CONSULTANT was not in default or that the CONSULTANT’s failure to perform is without the CONSULTANT’s or its employee’s fault or negligence, the termination shall be deemed to be a termination for the convenience of the AGENCY. In such an event, the CONSULTANT would be reimbursed for actual costs in accordance with the termination for other than default clauses listed previously.
The CONSULTANT shall, within 15 days, notify the AGENCY in writing, in the event of the death of any member, partner, or officer of the CONSULTANT or the death or change of any of the CONSULTANT’s supervisory and/or other key personnel assigned to the project or disaffiliation of any principally involved CONSULTANT employee.
The CONSULTANT shall also notify the AGENCY, in writing, in the event of the sale or transfer of 50% or more of the beneficial ownership of the CONSULTANT within 15 days of such sale or transfer occurring. The CONSULTANT shall continue to be obligated to complete the SERVICES under the terms of this AGREEMENT
unless the AGENCY chooses to terminate this AGREEMENT for convenience or chooses to renegotiate any term(s) of this AGREEMENT. If termination for convenience occurs, final payment will be made to the CONSULTANT
as set forth in the second and third paragraphs of this section.
Payment for any part of the SERVICES by the AGENCY shall not constitute a waiver by the AGENCY of any remedies of any type it may have against the CONSULTANT for any breach of this AGREEMENT by the CONSULTANT, or for failure of the CONSULTANT to perform SERVICES required of it by the AGENCY.
Forbearance of any rights under the AGREEMENT will not constitute waiver of entitlement to exercise those rights with respect to any future act or omission by the CONSULTANT.
Changes of Work
The CONSULTANT shall make such changes and revisions in the completed work of this AGREEMENT as necessary to correct errors appearing therein, without additional compensation thereof. Should the AGENCY find it desirable for its own purposes to have previously satisfactorily completed SERVICES or parts thereof
changed or revised, the CONSULTANT shall make such revisions as directed by the AGENCY. This work shall be considered as Extra Work and will be paid for as herein provided under section XIII “Extra Work.”
Disputes
Any disputed issue not resolved pursuant to the terms of this AGREEMENT shall be submitted in writing within 10 days to the Director of Public Works or AGENCY Engineer, whose decision in the matter shall be final and binding on the parties of this AGREEMENT; provided however, that if an action is brought challenging the Director of Public Works or AGENCY Engineer’s decision, that decision shall be subject to judicial review. If the parties to this AGREEMENT mutually agree, disputes concerning alleged design errors will be conducted under the procedures found in Exhibit “J”. In the event that either party deem it necessary to institute legal action or proceeding to enforce any right or obligation under this AGREEMENT, this action shall be initiated in the Superior Court of the State of Washington, situated in the county in which the AGENCY is located. The parties hereto agree that all questions shall be resolved by application of Washington law and that the parties have the right
of appeal from such decisions of the Superior Court in accordance with the laws of the State of Washington. The CONSULTANT hereby consents to the personal jurisdiction of the Superior Court of the State of Washington, situated in the county in which the AGENCY is located.
Legal Relations
The CONSULTANT, any sub-consultants, and the AGENCY shall comply with all Federal, State, and local laws, rules, codes, regulations and all AGENCY policies and directives, applicable to the work to be performed under this AGREEMENT. This AGREEMENT shall be interpreted and construed in accordance with the laws of the State of Washington.
The CONSULTANT shall defend, indemnify, and hold the State of Washington (STATE) and the AGENCY and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the negligence of, or the breach of any obligation under this AGREEMENT by, the CONSULTANT or the CONSULTANT’s agents, employees, sub consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable; provided that nothing herein shall require a CONSULTANT
Agreement Number:
to defend or indemnify the STATE and the AGENCY and their officers and employees against and hold harmless the STATE and the AGENCY and their officers and employees from claims, demands or suits based solely upon the negligence of, or breach of any obligation under this AGREEMENT by the STATE and the AGENCY, their agents, officers, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the STATE and/or the AGENCY may be legally liable; and provided further that if the claims or suits are caused by or result from the concurrent negligence of (a) the CONSULTANT or the CONSULTANT’s agents, employees,
sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT is legally liable, and (b) the STATE and or the AGENCY, their agents, officers, employees, sub-consultants, subcontractors and or vendors, of any tier, or any other persons for whom the STATE and or the AGENCY may be legally liable, the defense and indemnity obligation shall be valid and enforceable only to the extent of the CONSULTANT’s negligence or the negligence of the CONSULTANT’s agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable. This provision shall be included in any AGREEMENT between CONSULTANT and any sub-consultant, subcontractor and vendor, of any tier.
The CONSULTANT shall also defend, indemnify, and hold the STATE and the AGENCY and their officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the
alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or inventions by the CONSULTANT or the CONSULTANT’s agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable, in performance of the Work under this AGREEMENT or arising out of any use in connection with the AGREEMENT of methods, processes, designs, information or other items furnished or communicated to STATE and/or the AGENCY, their agents, officers and employees pursuant to the AGREEMENT; provided that this indemnity shall not apply to any alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or inventions resulting from STATE’s and/or the AGENCY’s, their agents’, officers’ and employees’ failure to comply with specific written instructions regarding use provided to STATE and/or the AGENCY, their agents, officers and employees by the CONSULTANT, its agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the CONSULTANT may be legally liable.
The CONSULTANT’s relation to the AGENCY shall be at all times as an independent contractor.
Notwithstanding any determination by the Executive Ethics Board or other tribunal, the AGENCY may, in its sole discretion, by written notice to the CONSULTANT terminate this AGREEMENT if it is found after due notice and examination by the AGENCY that there is a violation of the Ethics in Public Service Act, Chapter 42.52 RCW; or any similar statute involving the CONSULTANT in the procurement of, or performance under, this AGREEMENT.
The CONSULTANT specifically assumes potential liability for actions brought by the CONSULTANT’s own employees or its agents against the STATE and/or the AGENCY and, solely for the purpose of this indemnification and defense, the CONSULTANT specifically waives any immunity under the state industrial insurance law, Title 51 RCW. This waiver has been mutually negotiated by the Parties.
Unless otherwise specified in this AGREEMENT, the AGENCY shall be responsible for administration of construction contracts, if any, on the project. Subject to the processing of a new sole source, or an acceptable supplemental AGREEMENT, the CONSULTANT shall provide On-Call assistance to the AGENCY during contract administration. By providing such assistance, the CONSULTANT shall assume no responsibility for: proper construction techniques, job site safety, or any construction contractor’s failure to perform its work in accordance with the contract documents.
The CONSULTANT shall obtain and keep in force during the terms of this AGREEMENT, or as otherwise required, the following insurance with companies or through sources approved by the State Insurance Commissioner pursuant to Title 48 RCW.
Insurance Coverage
A. Worker’s compensation and employer’s liability insurance as required by the STATE.
B. Commercial general liability insurance written under ISO Form CG 00 01 12 04 or its equivalent with minimum limits of one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) in the aggregate for each policy period.
C. Business auto liability insurance written under ISO Form CG 00 01 10 01 or equivalent providing coverage for any “Auto” (Symbol 1) used in an amount not less than a one million dollar ($1,000,000.00) combined single limit for each occurrence.
Excepting the Worker’s Compensation Insurance and any Professional Liability Insurance, the STATE and AGENCY, their officers, employees, and agents will be named on all policies of CONSULTANT and any sub- consultant and/or subcontractor as an additional insured (the “AIs”), with no restrictions or limitations concerning products and completed operations coverage. This coverage shall be primary coverage and non-contributory and any coverage maintained by the AIs shall be excess over, and shall not contribute with, the additional insured coverage required hereunder. The CONSULTANT’s and the sub-consultant’s and/or subcontractor’s insurer shall waive any and all rights of subrogation against the AIs. The CONSULTANT shall furnish the AGENCY with verification of insurance and endorsements required by this AGREEMENT. The AGENCY reserves the right to require complete, certified copies of all required insurance policies at any time.
All insurance shall be obtained from an insurance company authorized to do business in the State of Washington. The CONSULTANT shall submit a verification of insurance as outlined above within fourteen (14) days of the execution of this AGREEMENT to:
Name:
Agency:
Address:
City: State: Zip:
Email:
Phone:
Facsimile:
No cancellation of the foregoing policies shall be effective without thirty (30) days prior notice to the AGENCY.
The CONSULTANT’s professional liability to the AGENCY, including that which may arise in reference to section IX “Termination of Agreement” of this AGREEMENT, shall be limited to the accumulative amount of the authorized AGREEMENT or one million dollars ($1,000,000.00), whichever is greater, unless the limit of liability is increased by the AGENCY pursuant to Exhibit H. In no case shall the CONSULTANT’s professional liability to third parties be limited in any way.
The parties enter into this AGREEMENT for the sole benefit of the parties, and to the exclusion of any third party, and no third party beneficiary is intended or created by the execution of this AGREEMENT.
The AGENCY will pay no progress payments under section V “Payment Provisions” until the CONSULTANT has fully complied with this section. This remedy is not exclusive; and the AGENCY may take such other action as is available to it under other provisions of this AGREEMENT, or otherwise in law.
Extra Work
A. The AGENCY may at any time, by written order, make changes within the general scope of this AGREEMENT in the SERVICES to be performed.
B. If any such change causes an increase or decrease in the estimated cost of, or the time required for, performance of any part of the SERVICES under this AGREEMENT, whether or not changed by the order, or otherwise affects any other terms and conditions of this AGREEMENT, the AGENCY shall make an equitable adjustment in the: (1) maximum amount payable; (2) delivery or completion schedule, or both; and (3) other affected terms and shall modify this AGREEMENT accordingly.
C. The CONSULTANT must submit any “request for equitable adjustment,” hereafter referred to as “CLAIM,” under this clause within thirty (30) days from the date of receipt of the written order. However, if the AGENCY decides that the facts justify it, the AGENCY may receive and act upon a CLAIM submitted before final payment of this AGREEMENT.
D. Failure to agree to any adjustment shall be a dispute under the section XI “Disputes” clause. However, nothing in this clause shall excuse the CONSULTANT from proceeding with the AGREEMENT as changed.
E. Notwithstanding the terms and conditions of paragraphs (A.) and (B.) above, the maximum amount payable for this AGREEMENT, shall not be increased or considered to be increased except by specific written supplement to this AGREEMENT.
Endorsement of Plans
If applicable, the CONSULTANT shall place their endorsement on all plans, estimates, or any other engineering data furnished by them.
Federal Review
The Federal Highway Administration shall have the right to participate in the review or examination of the SERVICES in progress.
Certification of the Consultant and the AGENCY
Attached hereto as Exhibit “G-1(a and b)” are the Certifications of the CONSULTANT and the AGENCY, Exhibit “G-2” Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions, Exhibit “G-3” Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying and Exhibit “G-4” Certificate of Current Cost or Pricing Data. Exhibit “G-3” is required only in AGREEMENT’s over one hundred thousand dollars ($100,000.00) and Exhibit “G-4” is required only in AGREEMENT’s over five hundred thousand dollars ($500,000.00.) These Exhibits must be executed by the CONSULTANT, and submitted with the master AGREEMENT, and returned to the AGENCY at the address listed in section III “General Requirements” prior to its performance of any SERVICES under this AGREEMENT.
Complete Agreement
This document and referenced attachments contain all covenants, stipulations, and provisions agreed upon by the parties. No agent, or representative of either party has authority to make, and the parties shall not be bound by or be liable for, any statement, representation, promise or agreement not set forth herein. No changes, amendments, or modifications of the terms hereof shall be valid unless reduced to writing and signed by the parties as a supplement to this AGREEMENT.
Execution and Acceptance
This AGREEMENT may be simultaneously executed in several counterparts, each of which shall be deemed to be an original having identical legal effect. The CONSULTANT does hereby ratify and adopt all statements,
representations, warranties, covenants, and AGREEMENT’s contained in the proposal, and the supporting material submitted by the CONSULTANT, and does hereby accept this AGREEMENT and agrees to all of the terms and conditions thereof.
Protection of Confidential Information
The CONSULTANT acknowledges that some of the material and information that may come into its possession or knowledge in connection with this AGREEMENT or its performance may consist of information that is exempt from disclosure to the public or other unauthorized persons under either chapter 42.56 RCW or other local, state or federal statutes (“State’s Confidential Information”). The “State’s Confidential Information” includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles,
credit card information, driver’s license numbers, medical data, law enforcement records (or any other information identifiable to an individual), STATE and AGENCY source code or object code, STATE and AGENCY security data, non-public Specifications, STATE and AGENCY non-publicly available data, proprietary software, STATE and AGENCY security data, or information which may jeopardize any part of the project that relates to any of these types of information. The CONSULTANT agrees to hold the State’s Confidential Information in strictest confidence and not to make use of the State’s Confidential Information for any purpose other than the performance of this AGREEMENT, to release it only to authorized employees, sub-consultants or subcontractors requiring such information for the purposes of carrying out this AGREEMENT, and not to release, divulge, publish, transfer,
sell, disclose, or otherwise make it known to any other party without the AGENCY’s express written consent or as provided by law. The CONSULTANT agrees to release such information or material only to employees, sub-consultants or subcontractors who have signed a nondisclosure AGREEMENT, the terms of which have been previously approved by the AGENCY. The CONSULTANT agrees to implement physical, electronic, and managerial safeguards to prevent unauthorized access to the State’s Confidential Information.
Immediately upon expiration or termination of this AGREEMENT, the CONSULTANT shall, at the AGENCY’s option: (i) certify to the AGENCY that the CONSULTANT has destroyed all of the State’s Confidential Information; or (ii) returned all of the State’s Confidential Information to the AGENCY; or (iii) take whatever other steps the AGENCY requires of the CONSULTANT to protect the State’s Confidential Information.
As required under Executive Order 00-03, the CONSULTANT shall maintain a log documenting the following: the State’s Confidential Information received in the performance of this AGREEMENT; the purpose(s) for which the State’s Confidential Information was received; who received, maintained and used the State’s Confidential Information; and the final disposition of the State’s Confidential Information. The CONSULTANT’s records shall be subject to inspection, review, or audit upon reasonable notice from the AGENCY.
The AGENCY reserves the right to monitor, audit, or investigate the use of the State’s Confidential Information collected, used, or acquired by the CONSULTANT through this AGREEMENT. The monitoring, auditing, or investigating may include, but is not limited to, salting databases.
Violation of this section by the CONSULTANT or its sub-consultants or subcontractors may result in termination of this AGREEMENT and demand for return of all State’s Confidential Information, monetary damages, or penalties.
It is understood and acknowledged that the CONSULTANT may provide the AGENCY with information which is proprietary and/or confidential during the term of this AGREEMENT. The parties agree to maintain the
confidentiality of such information during the term of this AGREEMENT and afterwards. All materials containing such proprietary and/or confidential information shall be clearly identified and marked as “Confidential” and shall be returned to the disclosing party at the conclusion of the SERVICES under this AGREEMENT.
The CONSULTANT shall provide the AGENCY with a list of all information and materials it considers confidential and/or proprietary in nature: (a) at the commencement of the term of this AGREEMENT; or (b) as soon as such confidential or proprietary material is developed. “Proprietary and/or confidential information” is not meant to include any information which, at the time of its disclosure: (i) is already known to the other party; (ii) is rightfully disclosed to one of the parties by a third party that is not acting as an agent or representative for the other party;
(iii) is independently developed by or for the other party; (iv) is publicly known; or (v) is generally utilized by unaffiliated third parties engaged in the same business or businesses as the CONSULTANT.
The parties also acknowledge that the AGENCY is subject to Washington State and federal public disclosure laws. As such, the AGENCY shall maintain the confidentiality of all such information marked proprietary and/ or confidential or otherwise exempt, unless such disclosure is required under applicable state or federal law. If a public disclosure request is made to view materials identified as “Proprietary and/or confidential information” or
otherwise exempt information, the AGENCY will notify the CONSULTANT of the request and of the date that such records will be released to the requester unless the CONSULTANT obtains a court order from a court of competent jurisdiction enjoining that disclosure. If the CONSULTANT fails to obtain the court order enjoining disclosure, the AGENCY will release the requested information on the date specified.
The CONSULTANT agrees to notify the sub-consultant of any AGENCY communication regarding disclosure that may include a sub-consultant’s proprietary and/or confidential information. The CONSULTANT notification to the sub-consultant will include the date that such records will be released by the AGENCY to the requester and state that unless the sub-consultant obtains a court order from a court of competent jurisdiction enjoining that disclosure the AGENCY will release the requested information. If the CONSULTANT and/or sub-consultant fail to obtain
a court order or other judicial relief enjoining the AGENCY by the release date, the CONSULTANT shall waive and release and shall hold harmless and indemnify the AGENCY from all claims of actual or alleged damages, liabilities, or costs associated with the AGENCY’s said disclosure of sub-consultants’ information.
Records Maintenance
During the progress of the Work and SERVICES provided hereunder and for a period of not less than six (6) years from the date of final payment to the CONSULTANT, the CONSULTANT shall keep, retain and maintain all “documents” pertaining to the SERVICES provided pursuant to this AGREEMENT. Copies of all “documents” pertaining to the SERVICES provided hereunder shall be made available for review at the CONSULTANT’s place of business during normal working hours. If any litigation, claim or audit is commenced, the CONSULTANT shall cooperate with AGENCY and assist in the production of all such documents. “Documents” shall be retained until all litigation, claims or audit findings have been resolved even though such litigation, claim or audit continues past the six (6) year retention period.
For purposes of this AGREEMENT, “documents” means every writing or record of every type and description, including electronically stored information (“ESI”), that is in the possession, control, or custody of the CONSULTANT, including, without limitation, any and all correspondences, contracts, AGREEMENT ‘s, appraisals, plans, designs, data, surveys, maps, spreadsheets, memoranda, stenographic or handwritten
notes, reports, records, telegrams, schedules, diaries, notebooks, logbooks, invoices, accounting records, work sheets, charts, notes, drafts, scribblings, recordings, visual displays, photographs, minutes of meetings, tabulations, computations, summaries, inventories, and writings regarding conferences, conversations or
telephone conversations, and any and all other taped, recorded, written, printed or typed matters of any kind or description; every copy of the foregoing whether or not the original is in the possession, custody, or control of the CONSULTANT, and every copy of any of the foregoing, whether or not such copy is a copy identical to an original, or whether or not such copy contains any commentary or notation whatsoever that does not appear on the original.
For purposes of this AGREEMENT, “ESI” means any and all computer data or electronic recorded media of any kind, including “Native Files”, that are stored in any medium from which it can be retrieved and examined, either directly or after translation into a reasonably useable form. ESI may include information and/or documentation stored in various software programs such as: Email, Outlook, Word, Excel, Access, Publisher, PowerPoint, Adobe Acrobat, SQL databases, or any other software or electronic communication programs or databases that the CONSULTANT may use in the performance of its operations. ESI may be located on network servers, backup tapes, smart phones, thumb drives, CDs, DVDs, floppy disks, work computers, cell phones, laptops or any other electronic device that CONSULTANT uses in the performance of its Work or SERVICES hereunder, including any personal devices used by the CONSULTANT or any sub-consultant at home.
“Native files” are a subset of ESI and refer to the electronic format of the application in which such ESI is normally created, viewed, and /or modified.
The CONSULTANT shall include this section XX “Records Maintenance” in every subcontract it enters into in relation to this AGREEMENT and bind the sub-consultant to its terms, unless expressly agreed to otherwise in writing by the AGENCY prior to the execution of such subcontract.
In witness whereof, the parties hereto have executed this AGREEMENT as of the day and year shown in the “Execution Date” box on page one (1) of this AGREEMENT.
Signature Date
Signature Date
Any modification, change, or reformation of this AGREEMENT shall require approval as to form by the Office of the Attorney General.
Exhibit A Scope of Work
Federal Aid No.
Exhibit B DBE Participation Plan
Exhibit C Preparation and Delivery of Electronic Engineering and Other Data
In this Exhibit the agency, as applicable, is to provide a description of the format and standards the consultant is to use in preparing electronic files for transmission to the agency. The format and standards to be provided may include, but are not limited to, the following:
I. Surveying, Roadway Design & Plans Preparation Section
A. Survey Data
B. Roadway Design Files
C. Computer Aided Drafting Files
D. Specify the Agency’s Right to Review Product with the Consultant
E. Specify the Electronic Deliverables to Be Provided to the Agency
F. Specify What Agency Furnished Services and Information Is to Be Provided
G. Any Other Electronic Files to Be Provided
II. Methods to Electronically Exchange Data
III. Agency Software Suite
A. Electronic Messaging System
B. File Transfers Format
C. Exhibit D Prime Consultant Cost Computations
Exhibit E Sub-consultant Cost Computations
The CONSULTANT shall not sub-contract for the performance of any work under this AGREEMENT without prior written permission of the AGENCY. Refer to section VI “Sub-Contracting” of this AGREEMENT.
Exhibit F Title VI Assurances
During the performance of this AGREEMENT, the CONSULTANT, for itself, its assignees, and successors in interest agrees as follows:
1. Compliance with Regulations: The CONSULTANT shall comply with the Regulations relative to non- discrimination in federally assisted programs of the AGENCY, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time (hereinafter referred to as the “REGULATIONS”), which are herein incorporated by reference and made a part of this AGREEMENT.
2. Non-discrimination: The CONSULTANT, with regard to the work performed during this AGREEMENT, shall not discriminate on the grounds of race, color, sex, or national origin in the selection and retention of sub-consultants, including procurement of materials and leases of equipment. The CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the REGULATIONS, including employment practices when this AGREEMENT covers a program set forth in Appendix B of the REGULATIONS.
3. Solicitations for Sub-consultants, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiations made by the CONSULTANT for work to be performed under a sub-contract, including procurement of materials or leases of equipment, each potential sub- consultant or supplier shall be notified by the CONSULTANT of the CONSULTANT’s obligations under this AGREEMENT and the REGULATIONS relative to non-discrimination on the grounds of race, color, sex, or national origin.
4. Information and Reports: The CONSULTANT shall provide all information and reports required by the REGULATIONS or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the AGENCY, the STATE, or the Federal Highway Administration (FHWA) to be pertinent to ascertain compliance with such REGULATIONS, orders and instructions. Where any information required of a CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, the CONSULTANT shall so certify to the AGENCY, the STATE, or the FHWA as appropriate, and shall set forth what efforts it has made to obtain the information.
5. Sanctions for Non-compliance: In the event of the CONSULTANT’s non-compliance with the non- discrimination provisions of this AGREEMENT, the AGENCY shall impose such AGREEMENT sanctions as it, the STATE, or the FHWA may determine to be appropriate, including, but not limited to:
• Withholding of payments to the CONSULTANT under this AGREEMENT until the CONSULTANT complies, and/or;
• Cancellation, termination, or suspension of this AGREEMENT, in whole or in part.
6. Incorporation of Provisions: The CONSULTANT shall include the provisions of paragraphs (1) through
(5) in every subcontract, including procurement of materials and leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto. The CONSULTANT shall take such action with respect to any sub-consultant or procurement as the STATE, the AGENCY, or FHWA may direct as a means of enforcing such provisions including sanctions for non-compliance.
Provided, however, that in the event a CONSULTANT becomes involved in, or is threatened with, litigation with a sub-consultant or supplier as a result of such direction, the CONSULTANT may request the AGENCY enter into such litigation to protect the interests of the STATE and/or the AGENCY and, in addition, the CONSULTANT may request the United States enter into such litigation to protect the interests of the United States. Agreement Number:
Exhibit G
Certification Documents
| | |
|Exhibit G-1(a) |Certification of Consultant |
|Exhibit G-1(b) |Certification of |
|Exhibit G-2 |Certification Regarding Debarment, Suspension and Other Responsibility Matters - |
| |Primary Covered Transactions |
|Exhibit G-3 |Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying |
|Exhibit G-4 |Certificate of Current Cost or Pricing Data |
Exhibit G-1(a) Certification of Consultant
I hereby certify that I am the and duly authorized representative of the firm of whose address is
and that neither the above firm nor I have:
a) Employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above CONSULTANT) to solicit or secure this AGREEMENT;
b) Agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out this AGREEMENT; or
c) Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above CONSULTANT) any fee, contribution, donation, or consideration of any kind for, or in connection with, procuring or carrying out this AGREEMENT; except as hereby expressly stated (if any);
I acknowledge that this certificate is to be furnished to the
and the Federal Highway Administration, U.S. Department of Transportation in connection with this AGREEMENT involving participation of Federal-aid highway funds, and is subject to applicable State and Federal laws, both criminal and civil.
Consultant (Firm Name)
Signature (Authorized Official of Consultant) Date
Exhibit G-1(b) Certification of
I hereby certify that I am the:
Other
of the , and
or its representative has not been required, directly or indirectly as an express or implied condition in connection with obtaining or carrying out this AGREEMENT to:
a) Employ or retain, or agree to employ to retain, any firm or person; or
b) Pay, or agree to pay, to any firm, person, or organization, any fee, contribution, donation, or consideration of any kind; except as hereby expressly stated (if any):
I acknowledge that this certificate is to be furnished to the
and the Federal Highway Administration, U.S. Department of Transportation, in connection with this AGREEMENT involving participation of Federal-aid highway funds, and is subject to applicable State and Federal laws, both criminal and civil.
Signature Date
Exhibit G-2 Certification Regarding Debarment, Suspension and Other
Responsibility Matters - Primary Covered Transactions
I. The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals:
A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency;
B. Have not within a three (3) year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under
a public transaction; violation of Federal or State anti-trust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
C. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and
D. Have not within a three (3) year period preceding this application / proposal had one or more public transactions (Federal, State and local) terminated for cause or default.
II. Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
Consultant (Firm Name)
Signature (Authorized Official of Consultant) Date
Exhibit G-3 Certification Regarding the Restrictions of the Use of Federal Funds
for Lobbying
The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or any employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative AGREEMENT, and the extension, continuation, renewal, amendment, or modification of Federal contract, grant, loan or cooperative AGREEMENT.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan or cooperative AGREEMENT, the undersigned shall complete and submit Standard Form - LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000.00, and not more than $100,000.00, for each such failure.
The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier sub-contracts, which exceed $100,000, and that all such sub-recipients shall certify and disclose accordingly.
Consultant (Firm Name)
Signature (Authorized Official of Consultant) Date
Exhibit G-4 Certificate of Current Cost or Pricing Data
This is to certify that, to the best of my knowledge and belief, the cost or pricing data (as defined in section
101. of the Federal Acquisition Regulation (FAR) and required under FAR subsection 15.403-4) submitted, either actually or by specific identification in writing, to the Contracting Officer or to the Contracting Officer’s representative in support of * are accurate, complete, and current
102. as of
**.
This certification includes the cost or pricing data supporting any advance AGREEMENT’s and forward pricing rate AGREEMENT’s between the offer or and the Government that are part of the proposal.
Firm:
Signature Title
Date of Execution***:
*Identify the proposal, quotation, request for pricing adjustment, or other submission involved, giving the appropriate identifying number (e.g. project title.)
**Insert the day, month, and year, when price negotiations were concluded and price AGREEMENT was reached.
***Insert the day, month, and year, of signing, which should be as close as practicable to the date when the price negotiations were concluded and the contract price was agreed to.
Exhibit H Liability Insurance Increase
To Be Used Only If Insurance Requirements Are Increased
The professional liability limit of the CONSULTANT to the AGENCY identified in Section XII, Legal Relations and Insurance of this Agreement is amended to $ .
The CONSULTANT shall provide Professional Liability insurance with minimum per occurrence limits in the amount of $ .
Such insurance coverage shall be evidenced by one of the following methods:
• Certificate of Insurance.
• Self-insurance through an irrevocable Letter of Credit from a qualified financial institution.
Self-insurance through documentation of a separate fund established exclusively for the payment of professional liability claims, including claim amounts already reserved against the fund, safeguards established for payment from the fund, a copy of the latest annual financial statements, and disclosure of the investment portfolio for those funds.
Should the minimum Professional Liability insurance limit required by the AGENCY as specified above exceed
$1 million per occurrence or the value of the contract, whichever is greater, then justification shall be submitted to the Federal Highway Administration (FHWA) for approval to increase the minimum insurance limit.
If FHWA approval is obtained, the AGENCY may, at its own cost, reimburse the CONSULTANT for the additional professional liability insurance required.
Notes: Cost of added insurance requirements: $ .
• Include all costs, fee increase, premiums.
• This cost shall not be billed against an FHWA funded project.
• For final contracts, include this exhibit.
• Exhibit I Alleged Consultant Design Error Procedures
The purpose of this exhibit is to establish a procedure to determine if a consultant’s alleged design error is of a nature that exceeds the accepted standard of care. In addition, it will establish a uniform method for the resolution and/or cost recovery procedures in those instances where the agency believes it has suffered some material damage due to the alleged error by the consultant.
Step 1 Potential Consultant Design Error(s) is Identified by Agency’s Project Manager
At the first indication of potential consultant design error(s), the first step in the process is for the Agency’s project manager to notify the Director of Public Works or Agency Engineer regarding the potential design error(s). For federally funded projects, the Region Local Programs Engineer should be informed and involved in these procedures. (Note: The Director of Public Works or Agency Engineer may appoint an agency staff person other than the project manager, who has not been as directly involved in the project,
to be responsible for the remaining steps in these procedures.)
Step 2 Project Manager Documents the Alleged Consultant Design Error(s)
After discussion of the alleged design error(s) and the magnitude of the alleged error(s), and with the Director of Public Works or Agency Engineer’s concurrence, the project manager obtains more detailed documentation than is normally required on the project. Examples include: all decisions and descriptions of work; photographs, records of labor, materials and equipment.
Step 3 Contact the Consultant Regarding the Alleged Design Error(s)
If it is determined that there is a need to proceed further, the next step in the process is for the project manager to contact the consultant regarding the alleged design error(s) and the magnitude of the alleged error(s). The project manager and other appropriate agency staff should represent the agency and the consultant should be represented by their project manager and any personnel (including sub-consultants) deemed appropriate for the alleged design error(s) issue.
Step 4 Attempt to Resolve Alleged Design Error with Consultant
After the meeting(s) with the consultant have been completed regarding the consultant’s alleged design error(s), there are three possible scenarios:
• It is determined via mutual agreement that there is not a consultant design error(s). If this is the case, then the process will not proceed beyond this point.
• It is determined via mutual agreement that a consultant design error(s) occurred. If this is the case, then the Director of Public Works or Agency Engineer, or their representatives, negotiate a settlement with the consultant. The settlement would be paid to the agency or the amount would be reduced from the consultant’s agreement with the agency for the services on the project in which the design error took place. The agency is to provide LP, through the Region Local Programs Engineer, a summary
of the settlement for review and to make adjustments, if any, as to how the settlement affects federal reimbursements. No further action is required.
• There is not a mutual agreement regarding the alleged consultant design error(s). The consultant may request that the alleged design error(s) issue be forwarded to the Director of Public Works or Agency Engineer for review. If the Director of Public Works or Agency Engineer, after review with their legal counsel, is not able to reach mutual agreement with the consultant, proceed to Step 5.
• Step 5 Forward Documents to Local Programs
For federally funded projects all available information, including costs, should be forwarded through the Region Local Programs Engineer to LP for their review and consultation with the FHWA. LP will meet with representatives of the agency and the consultant to review the alleged design error(s), and attempt
to find a resolution to the issue. If necessary, LP will request assistance from the Attorney General’s Office for legal interpretation. LP will also identify how the alleged error(s) affects eligibility of project costs
for federal reimbursement.
• If mutual agreement is reached, the agency and consultant adjust the scope of work and costs to reflect the agreed upon resolution. LP, in consultation with FHWA, will identify the amount of federal participation in the agreed upon resolution of the issue.
• If mutual agreement is not reached, the agency and consultant may seek settlement by arbitration or by litigation.
• Exhibit J
Consultant Claim Procedures
The purpose of this exhibit is to describe a procedure regarding claim(s) on a consultant agreement. The following procedures should only be utilized on consultant claims greater than $1,000. If the consultant’s claim(s) are a total of $1,000 or less, it would not be cost effective to proceed through the outlined steps. It is suggested that the Director of Public Works or Agency Engineer negotiate a fair and reasonable price for the consultant’s claim(s) that total $1,000 or less.
This exhibit will outline the procedures to be followed by the consultant and the agency to consider a potential claim by the consultant.
Step 1 Consultant Files a Claim with the Agency Project Manager
If the consultant determines that they were requested to perform additional services that were outside of the agreement’s scope of work, they may be entitled to a claim. The first step that must be completed is the request for consideration of the claim to the Agency’s project manager.
The consultant’s claim must outline the following:
• Summation of hours by classification for each firm that is included in the claim;
• Any correspondence that directed the consultant to perform the additional work;
• Timeframe of the additional work that was outside of the project scope;
• Summary of direct labor dollars, overhead costs, profit and reimbursable costs associated with the additional work; and
• Explanation as to why the consultant believes the additional work was outside of the agreement scope of work.
Step 2 Review by Agency Personnel Regarding the Consultant’s Claim for Additional Compensation
After the consultant has completed step 1, the next step in the process is to forward the request to the Agency’s project manager. The project manager will review the consultant’s claim and will met with the Director of Public Works or Agency Engineer to determine if the Agency agrees with the claim. If the FHWA is participating in the project’s funding, forward a copy of the consultant’s claim and the Agency’s recommendation for federal participation in the claim to the WSDOT Local Programs through the Region Local Programs Engineer. If the claim is not eligible for federal participation, payment will need to be from agency funds.
If the Agency project manager, Director of Public Works or Agency Engineer, WSDOT Local Programs
(if applicable), and FHWA (if applicable) agree with the consultant’s claim, send a request memo, including backup documentation to the consultant to either supplement the agreement, or create a new agreement
for the claim. After the request has been approved, the Agency shall write the supplement and/or new agreement and pay the consultant the amount of the claim. Inform the consultant that the final payment for the agreement is subject to audit. No further action in needed regarding the claim procedures.
If the Agency does not agree with the consultant’s claim, proceed to step 3 of the procedures.
Step 3 Preparation of Support Documentation Regarding Consultant’s Claim(s)
If the Agency does not agree with the consultant’s claim, the project manager shall prepare a summary for the Director of Public Works or Agency Engineer that included the following:
• Copy of information supplied by the consultant regarding the claim;
• Agency’s summation of hours by classification for each firm that should be included in the claim;
• Any correspondence that directed the consultant to perform the additional work;
• Agency’s summary of direct labor dollars, overhead costs, profit and reimbursable costs associated with the additional work;
• Explanation regarding those areas in which the Agency does/does not agree with the consultant’s claim(s);
• Explanation to describe what has been instituted to preclude future consultant claim(s); and
• Recommendations to resolve the claim.
Step 4 Director of Public Works or Agency Engineer Reviews Consultant Claim and Agency Documentation
The Director of Public Works or Agency Engineer shall review and administratively approve or disapprove the claim, or portions thereof, which may include getting Agency Council or Commission approval (as appropriate to agency dispute resolution procedures). If the project involves federal participation, obtain concurrence from WSDOT Local Programs and FHWA regarding final settlement of the claim. If the claim is not eligible for federal participation, payment will need to be from agency funds.
Step 5 Informing Consultant of Decision Regarding the Claim
The Director of Public Works or Agency Engineer shall notify (in writing) the consultant of their final decision regarding the consultant’s claim(s). Include the final dollar amount of the accepted claim(s) and rationale utilized for the decision.
Step 6 Preparation of Supplement or New Agreement for the Consultant’s Claim(s)
The agency shall write the supplement and/or new agreement and pay the consultant the amount of the claim. Inform the consultant that the final payment for the agreement is subject to audit.
EXHIBIT C
Utilities and Transportation Commission
State Action Plan Proposal
March 2021
Background
Section 11401 of the Fixing American’s Surface Transportation (FAST) Act, which passed in December 2015, requires each state to develop a State Action Plan (SAP). The SAP must span a period of at least four years and identify grade crossings and pathway crossings that: (a) have experienced recent accidents or incidents; (b) have experienced multiple accidents or incidents; or (c) are at high-risk for accidents or incidents as defined in each SAP. Additionally, each SAP must identify specific strategies for improving safety at grade and pathway crossings, including closures or grade separations. Each SAP must also specifically designate a state official responsible for managing implementation of the plan.The SAP must be submitted to the Federal Railroad Administration by Feb. 2022. Prior to the FAST Act, ten states with the highest number of grade crossing collisions were required to develop a SAP. Those states are Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Ohio, and Texas.
Other Federal Requirements for State Highway or Rail Programs
States are required, under 49 USC Sections 22701-22706, to develop a state rail plan. The Federal Railroad Administration (FRA) has issued guidance for the content and format of state rail plans. Grade crossing statistics are usually described in the state rail plan, but not to the depth of typical action plans.
Each state’s department of transportation is requirement to develop a Strategic Highway Safety Plan that provide a comprehensive framework for reducing highway fatalities and injuries on all public roads. It is a data-driven multiyear plan that establishes statewide goals, objectives, and key emphasis areas of highway safety, to include engineering, education, enforcement, and emergency medical services. States are not required to include strategies for improving safety at grade crossings in these plans, although some states do.
The Highway Safety Improvement Program is administered by the Federal Highway Administration (FHWA). Within that program, funds associated with the Railway-Highway Crossings Program (Section 130) are provided for the elimination of hazards and installation of protective devices at public grade crossings. Section 130(d) requires each state to conduct and systematically maintain a survey of all highways to identify those crossings that may require separation, relocation, or protective devices; and implement a schedule of projects to accomplish that. Each state is required to annually report on its state’s Section 130 program to include administration of the funds, project data from the current year, and effectiveness of completed projects.
Consulting Contract
UTC has determined it is not able to plan the SAP, manage the process, write a draft, and publish the required SAP within existing resources. UTC will contract with a consultant to do the bulk of the work in developing and writing the plan. UTC staff will be heavily involved in working with the consultant to provide direction and information, answer questions, approve proposed actions, attend stakeholder meetings, review drafts, and approve and submit the final report.
Internal SAP Team
The FRA and the FHWA suggest that states identify an internal SAP team consisting of members currently involved with planning, implementing, and reviewing state programs who can:
• Establish expectations and clearly define roles and responsibilities.
• Ensure adequate communication.
• Create measures of success.
To that end, UTC has formed the following internal SAP team and has estimated the resources each member will contribute, as follows:
|Staff |Title |Role |Time Period |% of Time |
|Kathy Hunter |Director, Transportation Safety |Provide overall direction |Duration of project |10 |
|Vicki Elliott |Rail Safety Policy Specialist |Team Lead |01/01-04/30/2021 |50 |
|Betty Young |Rail Safety Program Advisor |Team Member |01/01-04/30/2021 |10 |
|Betty Young |Rail Safety Program Advisor |Team Lead |05/01/2021-Duration |25 |
|Evan Enright |Rail Safety Supervisor |Team Member |Duration of project |10 |
|Katie Hancock |Transportation Specialist |Team Member |03/01/2021-Duration |10 |
Transportation Policy Advisor/Legislative Liaison Jason Lewis and UTC Internal public engagement staff (UTC’s Communications staff) will serve as needed in an advisory capacity. Additionally, UTC Commissioners will be involved in reviewing and approving the final published document.
External SAP Team
UTC will work with an external team of stakeholders in the railroad and highway safety community. The external team will serve as a steering committee, providing information to the internal team, offering direction and advice on moving forward, and gathering information to disseminate to their own stakeholder group. UTC will invite the following stakeholders to participate on the external team:
• Railroads, including freight, passenger, and commuter rail.
• Operation Lifesaver.
• County and city planning organizations, including freight and safety planners; particularly larger cities with widespread rail activities such as Seattle, Spokane, and Tacoma.
• Federal agencies, specifically FHWA safety staff at the division level and an FRA grade crossing specialist.
• Washington State Department of Transportation (WSDOT). WSDOT has informed UTC that its contact will be Jason Biggs; biggsjr@wsdot..
• Washington State Department of Ecology.
• Law enforcement associations and agencies.
• Public health planners.
• Emergency responders.
• Community organizations such as school districts or cycling associations.
• Neighboring states of Oregon and Idaho.
• Native American Tribes or Nations.
• Military installations.
• Legislative staff as determined by UTC legislative liaison.
• Association of Washington Ports.
Proposed Timeline
|Date |Responsible |Milestone |
|04/19/21 |Consultant |Begin work |
|05/03/21 |UTC Communications |Identify stakeholder representatives; Reach out, send invitation to 1st stakeholder |
| | |meeting, to be held 06/01; Schedule logistics for 1st stakeholder meeting |
|06/01/21 |Consultant |Lead 1st stakeholder meeting |
|06/02-06/16/21 |Consultant, UTC Rail Safety |With Consultant as lead, work collaboratively to incorporate stakeholder feedback into |
| | |proposed plan; Identify UTC data needed for 1st draft |
|06/30/21 |UTC Rail Safety |Provide UTC data needed for 1st draft to Consultant |
|07/30/21 |Consultant |Send 1st draft to Rail Safety |
|07/30-08/13/21 |UTC Rail Safety, Communications|Rail Safety reviews draft and incorporates feedback; works with Communications to finalize|
|08/13/21 |UTC Rail Safety |Provide feedback on 1st draft to Consultant |
|08/13/21 |UTC Communications |Schedule logistics for 2nd stakeholder meeting, to be held 09/15 |
|08/16-08/30/21 |Consultant, UTC Rail Safety |With Consultant as lead, work collaboratively to finalize 1st draft |
|09/01/21 |Consultant |Send 1st draft to stakeholders |
|09/15/21 |Consultant |Lead 2nd stakeholder meeting |
|09/16-09/30/21 |Consultant, UTC Rail Safety |With Consultant as lead, work collaboratively to incorporate stakeholder feedback into |
| | |proposed plan; Identify UTC data needed for 2nd draft |
|10/08/21 |UTC Rail Safety |Provide UTC data needed for 2nd draft to Consultant |
|10/22/21 |Consultant |Send 2nd draft to Rail Safety |
|10/25-11/03/21 |UTC Rail Safety, Communications|Rail Safety reviews draft and incorporates feedback; works with Communications to finalize|
|11/03/21 |UTC Rail Safety |Provide feedback on 2nd draft to Consultant |
|11/03/21 |UTC Communications |Schedule logistics for 3rd stakeholder meeting, to be held 12/01 |
|11/12/21 |Consultant |Send 2nd draft to stakeholder group |
|12/01/21 |Consultant |Lead 3rd stakeholder meeting |
|12/02-12/16/21 |Consultant, UTC Rail Safety |With Consultant as lead, work collaboratively to incorporate stakeholder feedback into |
| | |proposed plan; Identify UTC data needed for final draft |
|12/23/21 |UTC Rail Safety |Provide UTC data needed for final draft to Consultant |
|01/24/22 |Consultant |Final draft to Rail Safety |
|01/24-02/10/22 |Consultant, UTC Rail Safety, |Review final draft; produce final report |
| |UTC Communications | |
|02/10/22 |UTC Rail Safety |Final report uploaded to FRA (note drop-dead date is 02-14) |
|02/10-04/10/22 |FRA |FRA reviews SAP. FRA will communicate any concerns to SAP designated contact. State must |
| | |correct FRA-identified deficiencies within 60 days of notification. FRA will notify |
| | |contact when SAP is approved. FRA will post status of each state’s SAP on a US graphic |
| | |map, accessible at . |
Stakeholder Meetings
UTC proposes three virtual stakeholder meetings, with an invitation sent to each representative of the External SAP Team, identified above. Proposed agenda items for the meetings include:
|Proposed Date |Proposed Agenda Items (with Power Point presentation at each meeting) |
|Meeting 1 |Introductions, including identified facilitator; agenda |
|Date: 06/01/2021 |Background on how SAP mandate came to be |
| |Overview of FRA rules |
| |Role of UTC, WSDOT in Washington rail regulation |
| |UTC is SAP lead; role of staff and consultant |
| |National overview of railroads, crossings, configurations, accident data |
| |Washington overview of railroads, crossings, configuration, accident data |
| |Growth in rail traffic – National and Washington specific |
| |Overview of Washington funding sources (Section 130, GCPF) |
| |Acknowledge existing planning documents that will inform the process |
| |a. WSDOT State Rail Plan, 2019 |
| |b. WA State Strategic Highway Safety Plan, 2019 |
| |c. WSDOT 2020 Highway Safety Improvement Program |
| |d. JTC Prioritization of Prominent Road-Rail Conflicts in WA State, 2017 |
| |e. WSDOT 2017 and 2020 Section 130 funded, or potentially funded, projects |
| |f. Traffic Safety Annual Report, 2019 |
| |g. Marine and Rail Oil Transportation Study, 2014 |
| |h. JTC Assessment of Rail Safety Governance in Washington, 2021 |
| |Specific FRA requirements that must be included in SAP |
| |Proposed key milestones, timelines for SAP |
| |Stakeholders’ roles and responsibilities, including input on objectives and perceived contributing factors in accidents |
| |Roundtable – Each participant provides name, organization, top key issue, concern, or comment |
| |General discussion about today’s meeting – Questions, comments, feedback |
| |Next steps – Begin drafting documents, including input received today; send drafts to group ahead of next meeting; next |
| |meeting agenda includes more detailed look at Washington accident data, review drafts, provide input |
| |Question to group: Does any stakeholder want additional involvement in the process; any stakeholder welcome to send email|
| |to SAP email address, which will go to the consultant and UTC staff, with additional comments or questions throughout the|
| |process |
| |Next scheduled meeting |
| |Adjourn |
|Meeting 2 |Introductions, including identified facilitator; agenda |
|Date: 09/15/2021 |Last meeting highlights; work since that date |
| |Any questions, comments before meeting proceeds |
| |More detailed accident analysis for Washington with focus on FRA required analysis, (i.e., crossings with multiple |
| |accidents) |
| |Staff proposes suicides and unintended fatalities be presented as separate data points; feedback on that |
| |Presentation of draft documents |
| |Roundtable – Each participant provides name, organization, top key issue, concern, or comment on draft documents, |
| |process, work to date |
| |General discussion about draft documents, process, work to date – Questions, comments, feedback |
| |Next steps – Revise documents, including input received today; send drafts to group ahead of next meeting; next meeting |
| |agenda includes review of updated drafts, provide input |
| |Question to group: Does any stakeholder want additional involvement in the process; any stakeholder welcome to send email|
| |to SAP email address, which will go to the consultant and UTC staff, with additional comments or questions throughout |
| |the process |
| |Next scheduled meeting (next one is final meeting) |
| |Adjourn |
|Meeting 3 |Introductions, including identified facilitator; agenda |
|Date: 12/01/2021 |Last meeting highlights; work since that date |
| |Any questions, comments before meeting proceeds |
| |Presentation of draft documents |
| |Roundtable – Each participant provides name, organization, top key issue, concern, or comment on draft documents, |
| |process, work to date |
| |General discussion about draft documents, process, work to date – Questions, comments, feedback |
| |Next steps – Revise documents, including input received today; complete final draft; send final draft to group by email |
| |with 2-week period to provide feedback by email |
| |Prepare final report, send copy to stakeholders |
| |Adjourn |
Outline of SAP Document
The UTC SAP will include the following sections, with associated information, although not necessarily in the presented order. Note there may be additional elements not listed.
|Item |Section |Included Information |
|1. |Title Page |Graphic of railroad crossing, UTC name and logo, date. |
|2. |Public Engagement |Language similar to: “The WA SAP would not exist without the cooperation and participation of public, private, |
| | |and governmental representatives. ((Briefly describe stakeholder involvement process, including dates of |
| | |stakeholder meetings and follow-up)). UTC would like to acknowledge the following agencies for their |
| | |contribution to the completion of the plan…” Then list each external stakeholder. Acknowledge contribution of |
| | |consultant. |
|3. |Table of Contents | |
|4. |Executive Summary |Overview of: |
| | |Requirement to publish SAP. |
| | |WA rail environment (i.e., railroads, miles of track, # of public and private crossings, # of accidents and |
| | |fatalities). |
| | |SAP significant findings. |
| | |SAP strategies, goals, action steps, recommendations by category (i.e., education, engineering). |
| | |Provide contact information for a designated state official who will be responsible for managing SAP. |
|5. |SAP Introduction |Requirement to publish SAP from FRA. |
|6. |Background |Congressional action (FAST Act) that imposed requirements on FRA. |
|7. |Other data, info |Other agencies publish relevant documents. |
| |sources |WSDOT State Rail Plan |
| | |Published August 2020; WA State Rail Plan for 2019-2040. |
| | |6 transportation system policy goals defined by statute (pg. 2). |
| | |Federal and state requirements for State Rail Plan (pg. 4). |
| | |WA State Strategic Highway Safety Plan 2019 |
| | |Focused on reducing roadway deaths and serious injuries. |
| | |Sets priorities based on data re: largest contributing factors. |
| | |Acknowledges UTC, Washington Operation Lifesaver (WAOL) as rail safety organizations (pg. 106). |
| | |Acknowledges rail travel is much safer than vehicles (pg. 195). |
| | |JTC Prioritization of Prominent Road-Rail Conflicts in WA State |
| | |Published January 2017. |
| | |Required by ESHB 1299, section 204(3) in 2015. |
| | |Ended up with 50 priority at-grade crossings needing safety improvements. |
| | |Acknowledge that, while useful for background, and only 4 years old, it is based on data that is already |
| | |obsolete, so value is limited. |
| | |WSDOT 2020 Section 130 funded, or potentially funded, projects. |
| | |Traffic Safety Annual Report – 2019 |
| | |From the Washington Traffic Safety Commission |
| | |Published December 2019 |
| | |Focused solely on vehicle traffic; no mention of train activities |
| | |2014 Marine and Rail Oil Transportation Study |
| | |Published March 1, 2015, by Department of Ecology as lead agency |
| | |Analyzes risks to public healthy and safety and the environmental impacts associated with crude oil |
| | |transportation by rail |
| | |Included 43 recommendations, a number of which were implemented |
| | |JTC Assessment of Rail Safety Governance in Washington |
| | |Published January 1, 2021 |
| | |Focused on strengthening the rail safety oversight model in Washington for both freight and passenger rail |
| | |activities |
| | |Makes recommendations for legislative action which may or may not be addressed in the 2021 Session |
|8. |UTC Grade Crossing |Description of UTC’s program, including: |
| |Program |Limited jurisdiction over private crossings (only on oil routes) as a result of 2014 Marine and Rail Oil |
| | |Transportation Study. See recommendation 8, pg. 121, and resulting SHB 1449 legislation/UTC rules. |
| | |No jurisdiction within first class cities unless city has opted-in. Explain opt-in program as a result of 2014 |
| | |Marine and Rail Oil Transportation Study and which cities have/have not opted in. See recommendation 7, pg. 121,|
| | |and resulting legislation/UTC rules. |
| | |Railroad data – # and classes of freight railroads; # and types of transit, commuter, and light rail, with |
| | |illustrative graphics. Include/display: |
| | |UTC data. |
| | |Selected data, pg. 11-16, WSDOT State Rail Plan. |
| | |Exhibit 2-1, WA rail system by owner, WSDOT State Rail Plan. |
| | |Exhibit 2-2, Passenger rail corridors, WSDOT State Rail Plan. |
| | |Designated Strategic Rail Corridor Network, pg. 17, WSDOT State Rail Plan. |
| | |Description of Rail Database. |
| | |Information stored, sources, inspection/inventory program. |
| | |Identify this is the data source, along with FRA safety data, used throughout SAP. |
| | |Crossing data – A more in-depth description of the rail environment (i.e., miles of track, # of public crossings|
| | |with passive or active protection, # of private crossings and protection as far as is known, # of private |
| | |crossings on OBR routes and protection), with illustrative graphics. |
| | |Accident data – A more in-depth description of rail accidents and fatalities 2016-2020 (i.e., by crossing #, |
| | |type of crossing, type of pedestrian or vehicle driver, ages, gender, weather, other factors), with illustrative|
| | |graphics. |
|9. |Factors affecting |Higher future freight rail volumes; pg. 34, WSDOT State Rail Plan; include graphic and/or map. |
| |future rail |Short-line future viability; pg. 35, last ¶, WSDOT State Rail Plan; include graphic and/or map. |
| | |Limited info passenger train future; chapter 4, WSDOT State Rail Plan; include graphic and/or map. |
| | |Increasing incidents of blocked crossings, both at the national and state level; include #s over time. |
| | |Delays to emergency response personnel. |
| | |Vehicles hitting the train during nighttime or low-visibility conditions. |
| | |Vehicle accidents when motorists turn around to seek an alternate route. |
| | |Pedestrians cutting through or under a train. |
| | |Increasing shipment of oil by rail; pg. 76, WSDOT State Rail Plan); include graphic and/or map. |
| | |If not covered above, include maps of train counts and tonnage density on rail lines (see WSDOT State Rail |
| | |Plan). |
| | |Impact of any legislation passed in 2021 as a result of the JTC study “An Assessment of Rail Safety Governance |
| | |in Washington State.” |
|10. |Effect of safety |Types of potential grade crossing improvements and how they can affect safety. Include acknowledgment that the |
| |improve-ments |best alternative is a closed or grade separated crossing, but not always possible due to physical constraints |
| | |and exorbitant costs. |
| | |Is it possible to take examples of crossing with improvements; compare accidents at the crossing before and |
| | |after? |
| | |Types of potential pedestrian access improvements and how they can affect pedestrian safety (i.e., WAOL |
| | |projects, fencing). |
| | |Are there examples of how projects result in fewer future incidents? |
| | |Funding sources available for improvements. |
| | |Some administered by WA (i.e., GCPF, Section 130); others by Federal (i.e., FRA, FTA). |
| | |See chapter 8, WSDOT State Rail Plan. |
| | |Ratio of need to funding is limited (pg. 55-56, JTC Prioritization of Prominent Road-Rail Conflicts in WA State)|
|11. |Specific crossing, |Analyze, compare, contrast by % 2016-2020 national accident data to WA data, limited to grade crossing and |
| |pedestrian access |pedestrian accidents (not railroad accidents). |
| |locations that need |In-depth analysis of WA accident data points 2016-2020 (i.e., gender, age, location) for crossing and pedestrian|
| |attention |accidents, including causes (i.e., # and % of drivers that go around gates, # and % that are suicide), with |
| | |illustrative graphics. |
| | |Identify crossings with one accident in the past 3 years, or more than one in the past 5 years. |
| | |In-depth analysis of crossing data points for identified crossings, with illustrative graphics, including but |
| | |not limited to: |
| | |Average annual daily traffic. |
| | |Train traffic per day. |
| | |Total collisions at the crossing in the previous 5 years. |
| | |Number of main tracks. |
| | |Number of roadway lanes. |
| | |Sight distance. |
| | |Roadway geometry. |
| | |Maximum RR timetable speed. |
| | |Note: Although not required, the following may be useful: FRA accident predictor, railroad supplied near miss |
| | |data, evaluation of like crossings together (i.e., passive to passive, active to active), identification of |
| | |passive crossings on passenger or oil-by-rail routes. |
| | |Identify, in ranked order, crossings with risk for motor vehicle accidents. FRA suggests considering the |
| | |definition of “risk” in 49 CFR 270.5 and 271.5.[1] |
| | |Describe how crossings with risk were identified. |
| | |Identify crossings that are also on pg. 27-32, JTC Prioritization of Prominent Road-Rail Conflicts in WA State |
| | |(lists top 50 at-grade crossings prioritized for safety improvements). |
| | |Identify crossings that are also on pg. 102-103, WSDOT State Rail Plan, for existing grade separation projects |
| | |(see Section 130 folder in SharePoint). |
| | |Identify crossings that are also included in WSDOT 2020 Section 130 funded, or potentially funded, projects. |
| | |Identify crossings that are also included as “at-risk crossings” as a result of 2014 Marine and Rail Oil |
| | |Transportation Study (see recommendation 6, pg. 121). |
| | |Determine if USDOT #085699A or 085700S are on list (in Jan 2020, Sound Transit was awarded $1.4M USDOT grant for|
| | |improvements; see Crossing Improvement Plans SharePoint folder). |
| | |Identify pedestrian accident areas with multiple accidents that are also near a crossing (identify by USDOT |
| | |crossing #). |
| | |Identify crossings with more than one suicide in the past 5 years. |
|12. |Challenges |Identify internal challenges to achieving success. |
| | |Legislative or regulatory limitations, context-sensitive data, unique institutional relationships, planning |
| | |capacity, and available resources. For example, regulatory limitations in first-class cities and at private |
| | |crossings; unique institutional relationship between Section 130 funding at WSDOT, while SAP is at UTC. |
| | |Acknowledge limit of statutory regulatory fees to fund increased rail activities. |
| | |Identify external challenges. |
| | |Incident trends, geography, rail traffic (i.e., freight versus commuter rail), vehicle traffic, population |
| | |demographics, and economic activity. For example, a crossing with as many safety features as possible, but still|
| | |accidents occur and it is not a candidate for grade separation. |
|13. |Existing crossing and|UTC efforts |
| |pedestrian safety |Fatality investigations with recommendations. |
| |programs |GCPF. |
| | |FRA-certified crossing inspectors. |
| | |Working with locals and railroads. |
| | |Working with WAOL. |
| | |WAOL, including strides in increasing grant funding for trespass prevention. |
| | |WSDOT Section 130. |
| | |Others? |
|14. |Specific |Develop throughout the process. |
| |Recom-mendations |Must include goals, strategies, and objectives. See Appendix 2 for sample goals, strategies, objectives. |
| | |A goal is a broad statement that describes a desired end state. |
| | |A strategy is a plan or method to achieve a goal, with a specific timeframe for implementation, steps, and |
| | |conclusion. |
| | |An objective is a specific, measurable statement that supports achievement of a goal. Objectives are a means of |
| | |measuring progress toward meeting a strategy and goal. Objectives should be specific, measurable, agreed upon, |
| | |realistic, and time bound. |
| | |See Appendix 1 for FRA suggested considerations for objectives. |
| | |Process and metrics for measuring progress. |
| | |Note: For identified pedestrian accident areas with multiple accidents near a crossing in the past five years, |
| | |include strategies to address pedestrian accidents near the crossing. |
| | |Note: For crossings with more than one suicide in the past five years, include strategies to address suicides at|
| | |the crossing. |
| | |Note: To avoid new or increased risk, any crossing closure or separation projects should evaluate not only the |
| | |potential reduction in risk to motor vehicle occupants, but also the potential impact on trespassing along the |
| | |railroad right-of-way that may result. |
| | |Note: WA State Strategic Highway Safety Plan 2019, pg. 206: WA law allows traffic cameras to detect when a |
| | |vehicle crosses a railroad against the warning signs. |
|15. |Implemen-tation |Define implementation strategy to meet SAP recommendations, including priorities. Consider the following |
| |strategies |metrics: |
| | |Crossing closures or separations. |
| | |High speed rail corridors. |
| | |Efforts to analyze data to strategically pinpoint safety needs. |
| | |Implementation and experimentation of innovative technologies. |
| | |The 4 E’s (engineering, enforcement, education, emergency response). |
| | |Blocked crossings. |
| | |State-specific efforts. |
| | |Pedestrian issues, including ADA. |
| | |Crossing approach improvements. |
| | |Signage and pavement markings. |
| | |Highway user visibility. |
| | |Roadway geometry improvements. |
| | |Data acquisition and assessment. |
| | |Communications (inter- and intra-agency). |
| | |Assess future program needs to implement plan. |
APPENDIX 1
FRA SUGGESTED CONSIDERATIONS FOR OBJECTIVES
1. Grade crossing improvements:
a. Channelization.
b. New/Upgraded traffic signals, pre-signals, or queue cutters.
c. Guardrail as needed to shield roadside device supports, etc.
d. Pedestrian improvements.
e. Pathway improvements.
f. Illumination.
g. Signage and pavement marking Improvements.
h. Signage for the benefit of the motoring public and pedestrians.
i. Pavement striping and markings.
j. Raised pavement markers.
2. Active grade crossing warning devices:
a. Install or upgrade flashing lights.
b. Install gates.
c. Upgrade track circuitry.
d. Install or upgrade traffic signals.
e. Install or upgrade nearby highway traffic signal interconnection and preemption.
f. Install or upgrade standby power for any interconnects highway traffic signal(s).
g. Install or upgrade active warning system event recorders.
3. Highway user visibility improvements:
a. Assess sight distance.
b. Improve sight distance.
c. Clear vegetation.
4. Roadway geometry improvements:
a. Improve horizontal and vertical alignments.
b. Eliminate or mitigate humped crossings.
5. Grade crossing elimination:
a. Closure.
b. Relocation.
c. Consolidation.
d. Grade separation.
6. Grade crossing elimination:
a. Innovative technologies, which may include:
b. Research and development of next-generation technologies.
c. Experimentation of new traffic control devices (Section 1A.10 of Manual on uniform Traffic Control Devices).
d. Other state-supported efforts, such as entering into corporate contracts or participation by colleges, universities, or stakeholders.
7. Education and awareness efforts such as:
a. Partnership with Operation Lifesaver.
b. Inclusion of language in the state drivers’ license manual and in drivers’ license testing.
c. Use of K-12 and post-secondary students and educators.
d. Use of other organization such as law enforcement, judiciary, motor carrier drivers, and industrial, agricultural, or recreational groups.
e. Improved communication with and through first responders and social, public broadcast, cable, and print media.
8. Consideration of other areas specific to Washington, such as:
a. Compliance with Americans with Disabilities Act.
b. Coordinating with groups or facilities, such as Native American Tribes or Nations, military installations.
APPENDIX 2
SAMPLE GOALS, STRATEGIES, OBJECTIVES
Goal: Passive devices at public highway-railway crossings will be reflectorized.
Strategy: By October 1, 2021, using UTC staff and resources, identify all crossings without reflectorized passive devices; contact railroads or road authorities, as appropriate; work collaboratively to develop a plan to reflectorize devices.
Objective #1: For the three years beginning 2021, allocate 20 percent of available, annual state crossing funding to upgrading installation of retroreflective material for passive protection devices at public crossings.
Objective #2: By October 1, 2021, 75 percent of all passive crossing protection devices will be reflectorized according to current Manual on Uniform Traffic Control Devices standards.
EXHIBIT D
Contractor Certification
Executive Order 18-03 – Workers’ Rights
Washington State Goods & Services Contracts
Pursuant to the Washington State Governor’s Executive Order 18-03 (dated June 12, 2018), the Washington State Utilities and Transportation Commission is seeking to contract with qualified entities and business owners who certify that their employees are not, as a condition of employment, subject to mandatory individual arbitration clauses and class or collective action waivers.
|Solicitation No.: |RFQ-RFP 21-PS-29 |
I hereby certify, on behalf of the firm identified below, as follows (check one):
□ No Mandatory Individual Arbitration Clauses and Class or Collective Action Waivers for Employees. This firm does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.
or
□ Mandatory Individual Arbitration Clauses and Class or Collective Action Waivers for Employees. This firm requires its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.
I hereby certify, under penalty of perjury under the laws of the State of Washington, that the certifications herein are true and correct and that I am authorized to make these certifications on behalf of the firm listed herein.
|Firm Name: _____________________________________________________ |
|Name of Contractor/Bidder – Print full legal entity name of firm |
|By: ______________________________ |___________________________________ |
|Signature of authorized person |Print Name of person making certifications for firm |
|Title: ______________________________ |Place: _______________________________ |
|Title of person signing certificate |Print city and state where signed |
|Date: ______________________________ | |
Return Contractor Certification to Procurement Coordinator at:
betty.young@utc.
-----------------------
[1] 270.5 and 271.5 both have the same definition: Risk means the combination of the probability (or frequency of occurrence) and the consequence (or severity) of a hazard. 270.5 continues to define: Risk-based hazard management means the processes (including documentation) used to identify and analyze hazards, assess and rank corresponding risks, and eliminate or mitigate the resulting risks.
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