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APPENDIX D
Example of Pavement Condition Data Collection Request for Proposal--
Louisiana Department of Transportation and Development
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STATE OF LOUISIANA
Department of Transportation and Development
REQUEST FOR PROPOSALS
FOR
State Project No. 736-99-1362
F.A.P. No. SPR-0010(029)
Pavement Distress Data Collection
Statewide
January 13, 2006
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TABLE OF CONTENTS
SECTION TITLE SECTION PAGE(S)
General Information Section 1.0 107
Administrative Information Section 2.0 107-109
Proposal Information Section 3.0 109-112
Response Instructions Section 4.0 112-113
Evaluation and Selection Section 5.0 113-114
Consultant Requirements Section 6.0 114-117
Scope of Services Attachment I 118-121
Proposal Information (Standard Form DOTD 24-102 or Attachment II 122
similar format)
Price Proposal Attachment III 123
Certification Statement Attachment IV 124
Sample Consulting Services Contract Attachment V 125-132
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1.0. GENERAL INFORMATION
1.1 Purpose
This Request for Proposals (RFP) is issued by the Department of Transportation and
Development (herein referred to as DOTD) for the purpose of providing pavement distress data.
One Prime-Consultant/Sub-Consultant(s) (Consultant/Team) will be selected for this Contract.
The selected Consultant will use automated means to collect pavement condition, right of way
(ROW)/shoulder images, and pavement images on approximately 20,000 directional miles of the
State highway network over one data collection cycle. The system consists of asphalt-surfaced
roads, concrete-surfaced roads, brick-surfaced roads and gravel-surfaced roads. The data will be
used in a network-level pavement management system, and portions of the data are also
necessary for Highway Performance Monitoring System (HPMS) data submittal.
The selected consultant will provide a plan of procedures and techniques to be used to collect
each data element. The collection and analysis methods used must be able to analyze condition
data by type, extent, and (where applicable) severity at the specified level of detail as set forth in
the "Louisiana Cracking and Patching Protocol for Concrete Pavements" and "Louisiana
Cracking and Patching Protocol for Asphalt Surface Pavements".
1.2 Scope of Services
Attachment I details the scope of services and deliverables or desired results that DOTD requires
of the Consultant.
1.3 Project Manager
The Project Manager is Mr. Said Ismail, P.E.; he may be reached at (225) 242-4547.
2.0 ADMINISTRATIVE INFORMATION
2.1 Expected Time Period for Contract
The period of any contract resulting from this RFP is tentatively scheduled to begin on or about
May 01, 2006 and to continue through April 30, 2008. The data collection cycle is expected to
start on August 01, 2006, and be completed no later than May 01, 2007.
2.2 RFP Coordinator
Requests for copies of the RFP and written questions must be directed to the RFP Coordinator
listed below:
Dr. Babak Naghavi, P.E., P.H.
Consultant Contract Services Administrator
1201 Capitol Access Road, Room 405-T
Baton Rouge, LA 70802-4438 or
Post Office Box 94245
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Baton Rouge, Louisiana 70804-9245
Telephone: (225) 379-1989
Fax: (225) 379-1859
This RFP is available in electronic form at
http://webmail.dotd.state.la.us/AgreStat.nsf/WebView?OpenPage and
http://wwwsrch2.doa.state.la.us/osp/lapac/pubmain.asp, or in printed form by submitting a
written request to the RFP Coordinator.
2.3 Consultant Inquiries
DOTD will consider written consultant inquiries regarding RFP requirements or Scope of
Services before the date specified in the Calendar of Events. DOTD reserves the right to modify
the RFP should a change be identified that is in the best interest of DOTD.
To be considered, written inquiries and requests for clarification of the content of this RFP must
be received at the above address or via fax by 3:00 p.m. CST on the date specified in the
Calendar of Events. Any and all questions directed to the RFP Coordinator will be deemed to
require an official response. Official responses to each of the questions presented by the
consultant will be posted on the DOTD Consultant Contract Services and LaPAC websites as an
Addendum to the RFP by the deadline shown in the Calendar of Events.
2.4 Notice of Intent to Submit
A written Notification of Intent to Submit must be received by the RFP Coordinator by the
submission deadline shown in the Calendar of Events.
2.5 Pre-proposal Conference
A mandatory pre-proposal conference will be held at 8:30 a.m. CST, February 03, 2006 in the
DOTD Auditorium located in the DOTD Headquarters Building, 1201 Capitol Access Road,
Baton Rouge, LA. Prospective Consultants should participate in the conference to obtain
clarification of the requirements of the RFP and to receive answers to relevant questions.
Consultants will be required to demonstrate their ability to collect and reduce data over eight
half-mile segments and one mile segment. There will be no compensation for this demonstration.
This demonstration will provide DOTD evidence of the Firm's understanding of the project
requirements. Any Consultant/team intending to submit a proposal should have at least one duly
authorized representative attend the Pre-proposal Conference.
Although questions will be permitted and answers will be provided during the conference, the
only official answer or position of DOTD will be stated in writing in response to written
questions. Therefore, Consultants should submit all questions in writing (even if an answer has
already been given to an oral question). After the conference, questions will be researched and
the official response distributed on the date specified in the Calendar of Events.
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2.5 Calendar of Events
Event Date
Advertise RFP and mail public announcements January 13, 2006
Deadline for written notification of intent to submit January 23, 2006
Pre-proposal conference February 03, 2006
Beginning of Field Trials February 06, 2006
Deadline for receiving Consultant inquiries February 24, 2006
Issue responses to Consultant inquiries March 03, 2006
Proposal submission deadline March 20, 2006
Announce Award of "Successful Consultant" March 31, 2006
Contract execution May 01, 2006
NOTE: DOTD reserves the right to amend and/or change this schedule of RFP activities, as it
deems necessary.
3.0 PROPOSAL INFORMATION
3.1 Proposal Response Location
Consultants who are interested in providing consulting services under this RFP must submit all
proposals containing the information specified in Section 4.0. The fully completed original
proposal with original signatures by an authorized representative and all copies must be received in
hard copy (printed) version by the RFP Coordinator designated above by the deadline date
specified in the Calendar of Events. Fax or e-mail submissions are not acceptable.
3.2 Determination of Responsibility
Determination of the Consultant's responsibility relating to this RFP shall be made according to
the standards set forth in LAC 34: 136. DOTD must find that the Consultant:
Has adequate financial resources for performance, or has the ability to obtain such
resources as required during performance;
Has the necessary experience, organization, technical qualifications, skills, and facilities,
or has the ability to obtain them'
Is able to comply with the proposed or required time of delivery or performance
schedule;
Has a satisfactory record of integrity, judgment, and performance; and
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Is otherwise qualified and eligible to receive an award under applicable laws and
regulations.
3.3 Minimum Qualifications of Consultant
The Consultant must show the necessary expertise, personnel, and equipment necessary to
perform the work outlined in the Scope of Services (Attachment I). The Consultant's Firm must
have a minimum of three years experience in pavement data collection, and the Project Manager
must have a minimum of five years experience in pavement data collection. These requirements
must be met at the time of submittal.
The Consultant should ensure that their proposals contain sufficient information for DOTD to
make its determination by presenting acceptable evidence of the above to perform the services
called for by the contract.
3.4 Revisions to the RFP
DOTD reserves the right to change the calendar of events or revise any part of the RFP by
issuing an addendum to the RFP at any time.
3.5 Waiver of Administrative Informalities
DOTD reserves the right, at its sole discretion, to waive administrative informalities contained in
any proposal.
3.6 Proposal Rejection
Issuance of this RFP in no way constitutes a commitment by DOTD to award a contract. DOTD
reserves the right to accept or reject, in whole or part, all proposals submitted and/or cancel this
announcement if it is determined to be in DOTD's best interest.
3.7 Withdrawal and Re-submission of Proposal
A Consultant may withdraw a proposal that has been submitted at any time up to the date and
time the proposal is due. To accomplish this, a written request signed by the authorized
representative of the Consultant must be submitted to the RFP Coordinator.
3.8 Subcontracting Information
DOTD shall have a single Prime-Consultant as the result of any contract negotiation, and that
Prime-Consultant shall be responsible for all deliverables referenced in the RFP or proposal.
This general requirement notwithstanding, Consultants may enter into Sub-Consultant
arrangements, however the Prime-Consultant should acknowledge in their proposal total
responsibility for the entire contract.
If the Consultant intends to subcontract for portions of the work, the Consultant should include
specific designations of the tasks to be performed by the Sub-Consultant. Information required
of the Consultant under the terms of this RFP is also required for each Sub-Consultant.
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Unless provided for in the contract with DOTD, the Prime-Consultant shall not contract with any
other party for furnishing any of the work and professional services herein contracted for without
the express written approval of DOTD.
3.9 Ownership of Proposal
All materials submitted in response to this request become the property of DOTD. Selection or
rejection of a proposal does not affect this right.
3.10 Proprietary Information
Only information, which is in the nature of legitimate trade secrets or non-published financial
data, may be deemed proprietary or confidential. Any material within a proposal identified as
such must be clearly marked in the proposal and will be handled in accordance with the
Louisiana Public Record Act, R.S. 44: 1-44 and applicable rules and regulations. Any proposal
marked as confidential or proprietary in its entirety may be rejected without further consideration
or recourse.
3.11 Cost of Preparing Proposals
DOTD is not liable for any costs incurred by prospective Consultants prior to issuance of or
entering into a contract. Costs associated with developing the proposal, preparing for oral
presentations, and any other expenses incurred by the Consultant in responding to this RFP are
entirely the responsibility of the Consultant, and shall not be reimbursed in any manner by
DOTD.
3.12 Errors and Omissions in Proposal
DOTD will not be liable for any errors in proposals. DOTD reserves the right to make
corrections or amendments due to errors identified in proposals by DOTD or the Consultant.
DOTD, at its option, has the right to request clarification or additional information from the
Consultants.
3.13 Contract Award and Execution
DOTD reserves the right to enter into a Contract without further discussion of the proposal
submitted based on the initial offer received. DOTD reserves the right to contract for all or a
partial list of services offered in the proposal.
The RFP and proposal of the selected Consultant will become part of any contract initiated by
DOTD.
The selected Consultant will be expected to enter into a contract which is basically the same as
the sample contract included in Attachment V. In no event is a Consultant to submit its own
standard contract terms and conditions as a response to this RFP. The Consultant should submit
with their proposal any exceptions or exact contract deviations that their firm wishes to
negotiate. Negotiations may begin with the announcement of the selected Consultant.
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If the contract negotiation period exceeds ten working days or if the selected Consultant fails to
sign the final contract within ten working days of delivery of it, DOTD may elect to cancel the
award and award the contract to the next-highest-ranked Consultant.
3.14 Code of Ethics
Consultants are responsible for determining that there will be no conflict or violation of the
Ethics Code if their company is awarded the contract. Ethics issues are interpreted by the
Louisiana Board of Ethics.
4.0 RESPONSE INSTRUCTIONS
4.1 Proposal Submission
One original (stamped original) and four copies of the proposal should be submitted to DOTD.
Any Consultant/Team failing to submit any of the information required in this RFP will be
considered non-responsive.
The proposal will be identified with the State Project No. 736-99-1362 and will be submitted
prior to 3:00 p.m. CST on March 20, 2006, by hand delivery or mail addressed to:
Dr. Babak Naghavi, P.E., P.H.
Consultant Contract Services Administrator
1201 Capitol Access Road, Room 405-T
Baton Rouge, LA 70802-4438 or
Post Office Box 94245
Baton Rouge, Louisiana 70804-9245
Telephone: (225) 379-1989
Fax: (225) 379-1859
The proposal must be signed by those company officials or agents duly authorized to sign
proposals or contracts on behalf of the organization. A certified copy of a board resolution
granting such authority should be submitted.
It is solely the responsibility of each Consultant to assure that their proposal is delivered at the
specified place and prior to the deadline for submission. Proposals, which for any reason are not
received timely, will not be considered.
4.2 Cover Letter
A cover letter should be submitted on the Consultant's official business letterhead explaining the
intent of the Consultant.
4.3 Proposal Format
The Consultant should submit a proposal as specified in Attachment II (S.F. DOTD 24-102 or
similar format) which shall include adequate information that the Consultant has the appropriate
experience and qualifications to perform the scope of services as described herein. In Section 14
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of the S.F. DOTD 24-102 (or similar format), the Consultant should submit a work plan
reflecting their understanding of the project. The Consultant should respond to all areas
requested.
4.4 Price Proposal
The Consultant should submit a Price Proposal (included in Section 14 of the SF 24-102 or
similar format) to perform the services shown in the Scope of Services.
4.5 Certification Statement
The Consultant must sign and submit the Certification Statement shown in Attachment IV.
5.0 EVALUATION AND SELECTION
5.1 Evaluation Team
The evaluation of proposals will be accomplished by the Project Technical Selection Committee,
which will determine the proposal most responsive and advantageous to DOTD.
5.2 Administrative and Mandatory Screening
All proposals will be reviewed to determine compliance with administrative and mandatory
requirements as specified in the RFP. Proposals found not to be in compliance will be rejected
from further consideration.
5.3 Evaluation and Review
Each proposal will be rated from 0 to 4 for criteria one through four. For reference, the ratings
are based on the following:
0 - Unsatisfactory
1 - Poor
2 - Fair
3 - Good
4 - Excellent
Each Consultant will receive a price score computed as follows:
Price Score = Lowest Proposed Total Price x 36
Consultant's Proposed Total Price
Each applicable criterion (1-4) also has a weighting factor that is applied to place them in the
proper relationship with each other.
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WEIGHTING HIGHEST
CRITERIA FACTOR POSSIBLE SCORE
1) Firm experience on similar projects 4 16
2) Personnel experience as related to the project 4 16
3) Consultant's understanding of the project 4 16
requirements, evidenced in the proposed work
plan (Section 14 of the S.F. 24-102 or similar
format)
4) Consultant's understanding of the project 4 16
requirements, evidenced in the field trials
5) Price - 36
Total - 100
The Project Technical Selection Committee will compile the scores and make a recommendation
to the secretary based on highest score. The award of a contract is subject to the approval of the
Division of Administration, Office of Contractual Review.
5.4 Announcement of Consultant
DOTD will notify the successful Consultant and proceed to negotiate terms for final contract.
Unsuccessful Consultants will be notified in writing accordingly.
6.0 CONSULTANT REQUIREMENTS
6.1 Corporation Requirements
Upon the award of the contract, if the Consultant is a corporation not incorporated under the laws
of the State of Louisiana, the Consultant shall have obtained a certificate of authority pursuant to
R. S. 12:301-302 from the Secretary of State of Louisiana prior to the execution of the contract.
Upon the award of the contract, if the Consultant is a for-profit corporation whose stock is not
publicly traded, the Consultant shall ensure that a disclosure of ownership form has been
properly filed with the Secretary of State of Louisiana.
6.2 Compensation
Compensation to the Consultant for the services rendered for this Project shall consist of the
proposed lump sum by the Consultant for all services for a period of two years, payable in
installments as specified in 6.3, Billing and Payment.
6.3 Billing, Payment, and Damages
Payments to the Consultant for services rendered shall be made based on a certified invoice
directly proportional to the percentage of completed work as shown in the monthly progress
schedule. The monthly progress schedule shall: a) show in detail the status of the work; b) be
subdivided into appropriate Stages with estimated percentages for each Stage, and c) be of a
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ATTACHMENT II
PROPOSAL FORMAT
Consultants should submit their proposal to the RFP Coordinator using either the Standard Form
DOTD 24-102 (S.F. 24-102) or a similar proposal format that includes all applicable information
(in the same order) as the S.F. 24-102. Consultants are not required to be registered with the
Louisiana Secretary of State prior to selection. Questions regarding the S.F. 24-102 may be
directed to the RFP Coordinator.
The S.F. 24-102 and the Instructions for Completing the S.F. 24-102 may be downloaded from
DOTD's Website. The DOTD Website address is http://www.dotd.louisiana.gov and Consultant
Contract Services is listed under Doing Business with DOTD, and/or Pre-Construction. The S.F.
24-102 and the Instructions for Completing the S.F. 24-102 are listed under "Forms" on the
Consultant Contract Services Website.
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ATTACHMENT III - PRICE PROPOSAL
I/We propose to furnish all materials, equipment, travel, and incidentals necessary to provide the
scope of services as outlined in this RFP for the sum of:
$________________________ (Total Price)
$________________________ (Price per mile for pavement condition data and analysis)
NOTE: All travel related expenses will be compensated under direct expenses and will be
in accordance with Louisiana Office of State Travel regulations found at:
http://www.state.la.us/osp/travel/travelOffice.htm.
Name of Firm: ______________________________________________________
Address of Firm: ______________________________________________________
______________________________________________________
______________________________________________________
Telephone Number: ______________________________________________________
Signature: ______________________________________________________
Name and Title: ______________________________________________________
Date: ___________________________________
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ATTACHMENT IV
CERTIFICATION STATEMENT
The undersigned hereby acknowledges she/he has read and understands all requirements and specifications of the
Request for Proposals (RFP), including attachments.
OFFICIAL CONTACT. DOTD requires that the Consultant designate one person to receive all documents and the
method in which the documents are best delivered. Identify the Contact name and fill in the information below:
(Print Clearly):
Date: ______________________ Official Contact Name:______________________________________
A. E-mail Address: ______________________________________________
B. Facsimile Number with area code: (______)________________________
C. US Mail Address: ____________________________________________
D. Telephone Number: ___________________________________________
Consultant certifies that the above information is true and grants permission to DOTD or Agencies to contact the
above named person or otherwise verify the information I have provided.
By its submission of this proposal and authorized signature below, Consultant certifies that:
(1) The information contained in its response to this RFP is accurate;
(2) Consultant complies with each of the mandatory requirements listed in the RFP and will meet or exceed the
functional and technical requirements specified therein;
(3) Consultant accepts the procedures, evaluation criteria, contract terms and conditions, and all other
administrative requirements set forth in this RFP.
(4) Consultant's quote is valid for at least one year from the date of Consultant's signature below;
(5) Consultant understands that if selected as the successful Consultant, he/she will have (#) business days from
the date of delivery of final contract in which to complete contract negotiations, if any, and execute the final
contract document.
Authorized Signature: __________________________________________________
Typed or Printed Name: ________________________________________________
Title: ___________________________________________________________________________
Company Name: __________________________________________________________________
Address:_________________________________________________________________________
City: ____________________________________ State:_________ Zip: ________________
__________________________________________________/___________________
SIGNATURE of Consultant's Authorized Representative DATE
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ATTACHMENT V
SAMPLE
CONSULTING SERVICES CONTRACT
STATE OF LOUISIANA
DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
CONTRACT FOR SPECIAL SERVICES
STATE PROJECT NO. 736-99-1362
FEDERAL AID PROJECT NO. SPR-0010(029)
PAVEMENT DISTRESS DATA COLLECTION
STATEWIDE
On this day of , 2005, the State of Louisiana through the Louisiana
Department of Transportation & Development, hereinafter sometimes referred to as "DOTD",
and XXX, Inc., XXXXX Baton Rouge, Louisiana, 70809, hereinafter sometimes referred to as
"Consultant", do hereby enter into a Contract under the following terms and conditions.
Scope of Services
Attachment I details the Scope of Services and the Functional and Technical Requirements of the
Consultant.
Substitution of Key Personnel
The Consultant's key personnel assigned to this Contract may not be removed, replaced, or
substituted without the written consent of the DOTD. Consent shall not be unreasonably
withheld or delayed provided an equally qualified replacement is offered. In the event that any
Consultant personnel become unavailable due to resignation, illness, or other factors outside of
the Consultant's control, excluding assignment to a project outside of the Contract, the
Consultant shall be responsible for providing an equally qualified replacement to avoid delays in
completing tasks. Any such replacement of key personnel must be approved by DOTD.
Term of Contract
This Contract shall begin on XXX 01, 200X, and shall end on XXX 31, 200X, unless modified
by an executed supplemental agreement. Notwithstanding the foregoing, in no event shall this
Contract be valid until it has been approved, in writing, by the Director of the Office of
Contractual review of the Division of Administration. Such approval authorizes a Contract term
for not more than three years.
DOTD Furnished Resources
Mr. Said Ismail will serve as the DOTD Project Manager for this Contract. The DOTD Project
Manager shall provide oversight of the activities conducted hereunder. Notwithstanding the
Consultant's responsibilities for the performance of this Contract, the DOTD Project Manager
shall be the principal point of contact on behalf of the DOTD and shall be the principal point of
contact for Consultant.
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Taxes
Consultant is responsible for payment of all applicable taxes from the funds to be received under
this Contract. Consultant's federal tax identification number is XX-XXXXXX.
Compensation
Compensation to the Consultant for the services rendered for this Project shall consist of the
proposed lump sum by the Consultant for all services for a period of two years, payable in
monthly installments as specified in the Payment Terms.
Payment Terms
Payments to the Consultant for services rendered shall be made based on a certified invoice
directly proportional to the percentage of completed work as shown in the monthly progress
schedule. The monthly progress schedule shall: a) show in detail the status of the work; b) be
subdivided into appropriate Stages with estimated percentages for each Stage, and c) be of a
form and with a division of items as approved by the DOTD. The allowable costs shall be in
accordance with the cost principles and procedures set forth in 48 CFR 31, as appropriate.
The Consultant will submit invoices as outlined below:
Invoice 1 Preliminary Activities @ 5% of lump sum value plus any
hardware invoices
Invoice 2* District delivery and acceptance
Invoice 3* District delivery and acceptance
Invoice 4* District delivery and acceptance
Invoice 5* District delivery and acceptance
Invoice 6* District delivery and acceptance
Invoice 7* District delivery and acceptance
Invoice 8* District delivery and acceptance
Invoice 9* District delivery and acceptance
Invoice 10* District delivery and acceptance
Invoice 11 Submittal of Final Reports and supporting documentation
@ 5% of lump sum value
Invoice 12 Retainage recovery
*Each District will be invoiced @ 10% of lump sum value.
The Consultant will develop and present a master schedule for the Pavement Condition data
collection and Distress quantification for each District. Failure of the Consultant to deliver the
required number of Districts within the time frame will be subject to damages at $300 per day.
Failure to complete the delivery of all nine Districts quantified pavement distress data will be
subject to damages at $500 per day. Failure to complete delivery of the Final Report will subject
the Consultant to damages at $300 per day until all deliverables have been accepted.
The original and three copies of the invoice shall be submitted to the Project Manager. The
invoice must be signed and dated by a principal member of the Consultant's firm.
Upon receipt of each invoice, the DOTD shall pay the amount due within 30 calendar days,
according to Louisiana R.S. 251.5.
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NOTE: All travel related expenses will be compensated under direct expenses and will be
in accordance with Louisiana Office of State Travel regulations found at:
http://www.state.la.us/osp/travel/travelOffice.htm.
Termination for Cause
DOTD may terminate this Contract for cause based upon the failure of Consultant to comply
with the terms and/or conditions of the Contract; provided that the DOTD shall give the
Consultant written notice specifying the Consultant's failure. If within thirty (30) days after
receipt of such notice, the Consultant shall not have either corrected such failure or, in the case
of failure which cannot be corrected in thirty (30) days, begun in good faith to correct said failure
and thereafter proceeded diligently to complete such correction, then the DOTD may, at its
option, place the Consultant in default and the Contract shall terminate on the date specified in
such notice. Failure to perform within the time specified in the solicitation shall constitute a
default and may cause cancellation of the Contract. Where the DOTD has determined the
Consultant to be in default, the DOTD reserves the right to obtain any or all products or services
covered by the Contract on the open market and to charge the Consultant with cost in excess of
the Contract price. Until such assessed charges have been paid, no subsequent proposal from the
defaulting Consultant shall be considered.
Consultant may exercise any rights available to it under Louisiana law to terminate for cause
upon the failure of the DOTD to comply with the terms and conditions of this Contract provided
that the Consultant shall give the DOTD written notice specifying the DOTD's failure and a
reasonable opportunity for the DOTD to cure the defect.
Termination for Convenience
DOTD may terminate the Contract at any time without penalty by giving thirty (30) days written
notice to the Consultant of such termination or negotiating with the Consultant an effective date.
Consultant shall be entitled to payment for deliverables in progress, to the extent work has been
performed satisfactorily.
Termination for Non-Appropriation of Funds
The continuation of this Contract is contingent upon the appropriation of funds by the legislature
to fulfill the requirements of the Contract. If the legislature fails to appropriate sufficient monies
to provide for the continuation of the Contract, or if such appropriation is reduced by the veto of
the Governor or by any means provided in the appropriations act of Title 39 of the Louisiana
Revised Statutes of 1950 to prevent the total appropriation for the year from exceeding revenues
for that year, or for any other lawful purpose, and the effect of such reduction is to provide
insufficient monies for the continuation of the Contract, the Contract shall terminate on the date
of the beginning of the first fiscal year for which funds have not been appropriated.
Indemnification & Limitation of Liability
Neither party shall be liable for any delay or failure in performance beyond its control resulting
from acts of God or force majeure. The parties shall use reasonable efforts to eliminate or
minimize the effect of such events upon performance of their respective duties under Contract.
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Consultant shall be fully liable for the actions of its agents, employees, partners or Sub-
Consultants and shall fully indemnify and hold harmless the DOTD and its authorized users from
suits, actions, damages and costs of every name and description relating to personal injury and
damage to real or personal tangible property caused by Consultant, its agents, employees,
partners or Sub-Consultants, without limitation; provided, however, that the Consultant shall not
indemnify for that portion of any claim, loss or damage arising hereunder due to the negligent act
or failure to act of the DOTD.
Consultant shall indemnify, defend and hold the DOTD and its authorized users harmless,
without limitation, from and against any and all damages, expenses (including reasonable
attorneys' fees), claims, judgments, liabilities and costs which may be finally assessed against
the DOTD in any action for infringement of a United States Letter Patent with respect to the
Products furnished, or of any copyright, trademark, trade secret or intellectual property right,
provided that the DOTD shall give the Consultant: (i) prompt written notice of any action, claim
or threat of infringement suit, or other suit, (ii) the opportunity to take over, settle or defend such
action, claim or suit at Consultant's sole expense, and (iii) assistance in the defense of any such
action at the expense of Consultant. Where a dispute or claim arises relative to a real or
anticipated infringement, the DOTD or its authorized users may require Consultant, at its sole
expense, to submit such information and documentation, including formal patent attorney
opinions, as the Commissioner of Administration shall require.
The Consultant shall not be obligated to indemnify that portion of a claim or dispute based upon:
i) authorized user's unauthorized modification or alteration of a Product; ii) authorized user's use
of the Product in combination with other products not furnished by Consultant; iii) authorized
user's use in other than the specified operating conditions and environment.
In addition to the foregoing, if the use of any item(s) or part(s) thereof shall be enjoined for any
reason or if Consultant believes that it may be enjoined, Consultant shall have the right, at its
own expense and sole discretion as the authorized user's exclusive remedy to take action in the
following order of precedence: (i) to procure for the DOTD the right to continue using such
item(s) or part (s) thereof, as applicable; (ii) to modify the component so that it becomes non-
infringing equipment of at least equal quality and performance; or (iii) to replace said item(s) or
part(s) thereof, as applicable, with non-infringing components of at least equal quality and
performance, or (iv) if none of the foregoing is commercially reasonable, then provide monetary
compensation to the DOTD up to the dollar amount of the Contract.
For all other claims against the Consultant where liability is not otherwise set forth in the
Contract as being "without limitation", and regardless of the basis on which the claim is made,
Consultant's liability for direct damages, shall be the greater of $100,000, the dollar amount of
the Contract, or two (2) times the charges rendered by the Consultant under the Contract. Unless
otherwise specifically enumerated herein or in the work order mutually agreed between the
parties, neither party shall be liable to the other for special, indirect or consequential damages,
including lost data or records (unless the Consultant is required to back-up the data or records as
part of the work plan), even if the party has been advised of the possibility of such damages.
Neither party shall be liable for lost profits, lost revenue or lost institutional operating savings.
The DOTD and authorized user may, in addition to other remedies available to them at law or
equity and upon notice to the Consultant, retain such monies from amounts due Consultant, or
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may proceed against the performance and payment bond, if any, as may be necessary to satisfy
any claim for damages, penalties, costs and the like asserted by or against them.
Contract Controversies
Any claim or controversy arising out of the Contract shall be resolved by the provisions of
Louisiana Revised Statute 39:1524-26.
Fund Use
Consultant agrees not to use Contract proceeds to urge any elector to vote for or against any
candidate or proposition on an election ballot nor shall such funds be used to lobby for or against
any proposition or matter having the effect of law being considered by the Louisiana Legislature
or any local governing authority. This provision shall not prevent the normal dissemination of
factual information relative to a proposition on any election ballot or a proposition or matter
having the effect of law being considered by the Louisiana Legislature or any local governing
authority.
Ownership
All records, reports, documents and other material delivered or transmitted to the Consultant by
DOTD shall remain the property of DOTD, and shall be returned by the Consultant to DOTD,
and all records, reports, documents and other material delivered or transmitted to the Consultant
by the Department of Culture, Recreation, and Tourism, Office of Cultural Development,
Division of Archaeology and Division of Historic Preservation shall remain the property of
Division of Archeology and Division of Historic Preservation, and shall be returned by the
Consultant to the Divisions of Archeology and Historic Preservation at the Consultant's expense,
at termination or expiration of this Contract. All records, reports, documents, or other material
related to this Contract and/or obtained or prepared by the Consultant in connection with the
performance of the services contracted for herein shall become the property of DOTD, and shall,
upon request, be returned by the Consultant to DOTD, at the Consultant's expense, at termination
or expiration of this Contract.
Assignment
No Consultant shall assign any interest in this Contract by assignment, transfer, or novation,
without prior written consent of the DOTD. This provision shall not be construed to prohibit the
Consultant from assigning to a bank, trust company, or other financial institution any money due
or to become due from approved Contracts without such prior written consent. Notice of any
such assignment or transfer shall be furnished promptly to the DOTD.
Right to Audit
The DOTD Auditor, State Legislative auditor, federal auditors and internal auditors of the
Division of Administration, or others so designated by the DOA, shall have the option to audit all
accounts directly pertaining to the Contract for a period of five (5) years from the date of the last
payment made under this Contract. Records shall be made available during normal working
hours for this purpose.
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Contract Modification
No amendment or variation of the terms of this Contract shall be valid unless made in writing,
signed by the parties and approved as required by law. No oral understanding or agreement not
incorporated in the Contract is binding on any of the parties.
Confidentiality of Data
All financial, statistical, personal, technical and other data and information relating to the
DOTD's operation which are designated confidential by the DOTD and made available to the
Consultant in order to carry out this Contract, or which become available to the Consultant in
carrying out this Contract, shall be protected by the Consultant from unauthorized use and
disclosure through the observance of the same or more effective procedural requirements as are
applicable to the DOTD. The identification of all such confidential data and information as well
as the DOTD's procedural requirements for protection of such data and information from
unauthorized use and disclosure shall be provided by the DOTD in writing to the Consultant. If
the methods and procedures employed by the Consultant for the protection of the Consultant's
data and information are deemed by the DOTD to be adequate for the protection of the DOTD's
confidential information, such methods and procedures may be used, with the written consent of
the DOTD, to carry out the intent of this paragraph. The Consultant shall not be required under
the provisions of the paragraph to keep confidential any data or information which is or becomes
publicly available, is already rightfully in the Consultant's possession, is independently
developed by the Consultant outside the scope of the Contract, or is rightfully obtained from
third parties. In accordance with the requirements of the Division of Archeology, the Consultant
shall maintain the confidentiality of the location of archaeological sites.
Sub-Consultants
The Consultant may, with prior written permission from the DOTD, enter into subcontracts with
third parties for the performance of any part of the Consultants duties and obligations. In no
event shall the existence of a subcontract operate to release or reduce the liability of the
Consultant to the DOTD for any breach in the performance of the Consultant's duties.
Discrimination Clause
The Consultant agrees to abide by the requirements of the following as applicable: Title VI and
VII of the Civil Rights Act of 1964, as amended by the Equal Opportunity Act of 1972, Federal
Executive Order 11246, the Federal Rehabilitation Act of 1973, as amended, the Vietnam Era
Veteran's Readjustment Assistance Act of 1974, Title IX of the Education Amendments of 1972,
the Age Act of 1975, and the Consultant agrees to abide by the requirements of the Americans
with Disabilities Act of 1990.
Consultant agrees not to discriminate in its employment practices, and will render services under
this contract without regard to race, color, religion, sex, sexual orientation, national origin,
veteran status, political affiliation, or disabilities.
Any act of discrimination committed by the Consultant, or failure to comply with these statutory
obligations when applicable shall be grounds for termination of this contract.
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Insurance
Insurance shall be placed with insurers with an A.M. Best's rating of no less than A-:VI. This
rating requirement shall be waived for Worker's Compensation coverage only.
Consultant's Insurance: The Consultant shall not commence work under this Contract until he
has obtained all insurance required herein. Certificates of Insurance, fully executed by officers of
the Insurance Company written or countersigned by an authorized Louisiana state agency, shall
be filed with the State of Louisiana for approval. The Consultant shall not allow any Sub-
Consultant to commence work on his subcontract until all similar insurance required for the Sub-
Consultant has been obtained and approved. If so requested, the Consultant shall also submit
copies of insurance policies for inspection and approval of the State of Louisiana before work is
commenced. Said policies shall not hereafter be canceled, permitted to expire, or be changed
without thirty (30) days notice in advance to the State of Louisiana and consented to by the State
of Louisiana in writing and the policies shall so provide.
Compensation Insurance: Before any work is commenced, the Consultant shall maintain during
the life of the Contract, Workers' Compensation Insurance for all of the Consultant's employees
employed at the site of the project. In case any work is sublet, the Consultant shall require the
Sub-Consultant similarly to provide Workers' Compensation Insurance for all the latter's
employees, unless such employees are covered by the protection afforded by the Consultant. In
case any class of employees engaged in work under the Contract at the site of the project is not
protected under the Workers' Compensation Statute, the Consultant shall provide for any such
employees, and shall further provide or cause any and all Sub-Consultants to provide Employer's
Liability Insurance for the protection of such employees not protected by the Workers'
Compensation Statute.
Commercial General Liability Insurance: The Consultant shall maintain during the life of the
Contract such Commercial General Liability Insurance which shall protect him, the DOTD, and
any Sub-Consultant during the performance of work covered by the Contract from claims or
damages for personal injury, including accidental death, as well as for claims for property
damages, which may arise from operations under the Contract, whether such operations be by
himself or by a Sub-Consultant, or by anyone directly or indirectly employed by either or them,
or in such a manner as to impose liability to the DOTD. Such insurance shall name the DOTD as
additional insured for claims arising from or as the result of the operations of the Contactor or his
Sub-Consultants. In the absence of specific regulations, the amount of coverage shall be as
follows: Commercial General Liability Insurance, including bodily injury, property damage and
contractual liability, with combined single limits of $1,000,000.
Insurance Covering Special Hazards: Special hazards as determined by the DOTD shall be
covered by rider or riders in the Commercial General Liability Insurance Policy or policies
herein elsewhere required to be furnished by the Consultant, or by separate policies of insurance
in the amounts as defined in any Special Conditions of the Contract included therewith.
Licensed and Non-Licensed Motor Vehicles: The Consultant shall maintain during the life of the
Contract, Automobile Liability Insurance in an amount not less than combined single limits of
$1,000,000 per occurrence for bodily injury/property damage. Such insurance shall cover the use
of any non-licensed motor vehicles engaged in operations within the terms of the Contract on the
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site of the work to be performed there under, unless such coverage is included in insurance
elsewhere specified.
Sub-Consultant's Insurance: The Consultant shall require that any and all Sub-Consultants,
which are not protected under the Consultant's own insurance policies, take and maintain
insurance of the same nature and in the same amounts as required of the Consultant.
Applicable Law
This Contract shall be governed by and interpreted in accordance with the laws of the State of
Louisiana. Venue of any action brought with regard to this Contract shall be in the Nineteenth
Judicial District Court, parish of East Baton Rouge, State of Louisiana.
Code of Ethics
The Consultant acknowledges that Chapter 15 of Title 42 of the Louisiana Revised Statutes (R.S.
42:1101 et. seq., Code of Governmental Ethics) applies to the Contracting Party in the
performance of services called for in this Contract. The Consultant agrees to immediately notify
the DOTD if potential violations of the Code of Governmental Ethics arise at any time during the
term of this Contract.
Severability
If any term or condition of this Contract or the application thereof is held invalid, such invalidity
shall not affect other terms, conditions, or applications which can be given effect without the
invalid term, condition, or application; to this end the terms and conditions of this Contract are
declared severable.
Complete Contract
This is the complete Contract between the parties with respect to the subject matter and all prior
discussions and negotiations are merged into this Contract. This Contract is entered into with
neither party relying on any statement or representation made by the other party not embodied in
this Contract and there are no other agreements or understanding changing or modifying the
terms. This Contract shall become effective upon final statutory approval.
Order of Precedence
This Contract shall, to the extent possible, be construed to give effect to all of its provisions;
however, where provisions are in conflict, first priority shall be given to the provisions of the
Contract, excluding the Request for Proposals, its amendments and the Proposal; second priority
shall be given to the provisions of the Request for Proposals and its amendments; and third
priority shall be given to the provisions of the Proposal.
