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Public Utility Commission of Oregon
Request for Qualifications
for
Independent Evaluator Services
For
Request for Proposals for Major Resources
Qualifications Due: February 19, 2014
4:00 PM Pacific Time
Issuing Entity: Public Utility Commission of Oregon
Contact: Erik Colville, PE
Telephone: (503) 378-6360
Fax: (503) 373-7752
Table of Contents
I. INTRODUCTION ................................................................................................................................... 1
A. Purpose............................................................................................................................................... 1
B. Background ........................................................................................................................................ 1
C. Contract Term and Amendments ....................................................................................................... 1
D. Estimated Schedule of Events for this IE-RFQ.................................................................................. 2
E. Reservation of Rights ......................................................................................................................... 2
F. IE-RFQ Addenda ................................................................................................................................ 2
G. Proprietary Information...................................................................................................................... 2
II. DESCRIPTION OF WORK................................................................................................................... 3
A. Deliverables ....................................................................................................................................... 3
B. Other Activities* ................................................................................................................................ 6
III. EXAMPLE RESOURCE RFP SCHEDULE ........................................................................................ 7
IV. INDEPENDENCE AND CONFLICTS OF INTEREST...................................................................... 8
V. SOQ CONTENTS .................................................................................................................................. 8
A. Independence and Conflicts of Interest .............................................................................................. 8
B. Preferred Contact Method .................................................................................................................. 8
C. Required Checklist ............................................................................................................................. 8
D. Optional Submittals ........................................................................................................................... 8
VI. SOQ SUBMITTAL REQUIREMENTS............................................................................................... 9
VII. PASS/FAIL SCORING CRITERIA ................................................................................................. 10
VIII. PROCESS FOR ROSTER DEVELOPMENT ................................................................................. 10
A. Evaluation ........................................................................................................................................ 10
B. Results Notification .......................................................................................................................... 10
IX. CONTRACT INFORMATION .......................................................................................................... 11
ATTACHMENT A – SOQ Checklist ......................................................................................................... 1
ATTACHMENT B - OPUC Competitive Bidding Guidelines .................................................................. 1
ATTACHMENT C – Sample Scope of Work ............................................................................................ 1
ATTACHMENT D - Sample IOU Professional Services Agreement ........................................................ 1
I. INTRODUCTION
A. Purpose
The Public Utility Commission of Oregon (OPUC) is seeking statements of qualifications
(SOQ) from qualified entities interested in serving as an Independent Evaluator (IE) to assist
the OPUC and Oregon Investor Owned Utilities (IOU) in conducting and evaluating proposals
received in response to requests for proposals for major resource acquisitions (Resource RFP).
Major resources are defined as those of duration greater than five years and quantities greater
than 100 megawatts (MW).
The purpose of this request for qualifications (IE-RFQ) is to assist the OPUC in developing and
maintaining a roster of qualified entities to invite to respond to IE Requests for Proposals (IERFP) that may be issued in the future. The IOUs will use the roster as a starting point to
identify which entities to invite to respond to IE-RFPs in the future. Entities on the roster will
be invited to respond to IE-RFPs using the preferred contact method identified in that entity’s
SOQ. The invitation may include the IE-RFP or identify an internet location where the IE-RFP
may be downloaded.
The IE selected for each IE-RFP will participate in each Resource RFP to ensure that the
Resource RFPs are conducted fairly and properly and that proposals thereto are evaluated
consistently. The IE must be independent of the IOU and potential Resource RFP responders,
and also be experienced and competent to perform all IE functions identified in the OPUC
Competitive Bidding Guidelines, attached to this IE-RFQ as Attachment B. The IOU will
contract directly with the OPUC-selected IE pursuant to the IOU’s Professional Services
Agreement (sample included as Attachment D to this IE-RFQ).
B. Background
Under the OPUC Competitive Bidding Guidelines, an IE must be used in each major Resource
RFP to help ensure that all offers are treated fairly and consistently with the self-build resource
(Benchmark Resource) alternatives. In addition, the IE is tasked with answering the following
three questions:
1. Is there a need for the resource(s)?
2. What is the need (type, size, timing)?
3. Does the final shortlist identify the resource(s) with the best combination of cost and
risk?
C. Contract Term and Amendments
IE contracts are anticipated to be for an initial term of up to eighteen (18) months, with the
option to renew as needed until the IE’s work in the Resource RFP process is completed. The
IE must be available according to the estimated Resource RFP schedule set forth in the
Resource RFP, and as it may be amended by the OPUC.
D. Estimated Schedule of Events for this IE-RFQ
•
•
•
•
Release IE-RFQ ……................................…………………….…Week 1
Inquiry Deadline ............................................................................Week 3
Response Deadline .........................................................................Week 6
OPUC release of IE roster ..........................................……........…Week 9
NOTE: All durations are subject to change.
E. Reservation of Rights
OPUC reserves the right in its sole discretion to:
1. Amend this RFQ for any reason or cancel this solicitation without liability.
2. Reject any or all SOQs received in response to this IE-RFQ, without liability. OPUC is
not responsible for any costs incurred by any entity submitting a SOQ in response to this
RFQ, and entities who submit a SOQ do so solely at their own risk, cost and expense;
3. Waive any minor irregularity, informality, or non-conformance with the provisions or
procedures set forth in this IE-RFQ, and to seek clarification of each SOQ if necessary;
4. Contact any or all references submitted with the SOQ.
F. IE-RFQ Addenda
OPUC may revise this IE-RFQ prior to the IE-RFQ response deadline. OPUC will not waive,
alter, modify, supplement or amend the terms of this IE-RFQ in any manner except by written
addenda issued by OPUC in the same manner as the original IE-RFQ was issued. Any
purported changes, additions, interpretations or clarifications to the IE-RFQ that are issued in
any manner other than as described above will not be effective, and entity shall not rely upon
such information.
G. Proprietary Information
All information submitted by an entity in response to this IE-RFQ will be considered public
information unless the entity requests that information be treated as confidential, and the
information is considered exempt under ORS 192.501 or 192.502. If an entity declares any
information contained in its SOQ submittal to be confidential, the entity must specifically
identify those SOQ sections containing such information as “Confidential Information” and
briefly explain how and why the information is exempt from disclosure to the public pursuant
to ORS 192.501 or 192.502. Specifically, any documents submitted by the entity that contain
confidential information shall be marked on the outside as containing “Confidential
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Information”, and each page upon which confidential information appears must be marked as
containing confidential information. The confidential information should be clearly identifiable
to the reader wherever it appears. All copies submitted, as well as the original SOQ, must be
marked in this manner. The request must also include the name, address, and telephone number
of the person authorized by the entity to respond to any inquires by OPUC concerning the
confidential status of the materials. The entity agrees that OPUC may submit such confidential
information to other parties pursuant to a protective order.
II. DESCRIPTION OF WORK
A. Deliverables
The IE will provide the following for each Resource RFP:
1. IE Assessment of the IOU’s draft Resource RFP
Due when the IOU submits its final draft Resource RFP to the OPUC for approval
(estimated to be two to four weeks after the IOU’s execution of the IE contract). The
assessment should take into account the three criteria for RFP approval (Attachment B,
Guideline 7). The assessment should address the evaluation criteria, methods, and pro
forma contracts included with the Resource RFP (See Attachment B Guideline 6, 7, 8,
9, 10, 11, and 13). The assessment also should review the adequacy, accuracy and
completeness of all solicitation materials to ensure compliance with the OPUC’s
Competitive Bidding Guidelines and consistency with accepted industry standards and
practices.
2. Status Reports – To be filed with the OPUC:
a. Three weeks after Resource RFP qualifications screening is completed, noting any
unresolved issues that could impair the equity or appropriateness of the solicitation
process and including issues which are raised at the pre-proposal conference.
b. Three weeks after the IOU selects its initial short-list, detailing the results of the IOU’s
initial screening evaluation. Include a description of the proposals and provide an
assessment of the IOU’s selection of the initial short-list, including rationale for
eliminating proposals. This status report will be provided to the OPUC under seal or
on a highly confidential basis.
3. Reports, Scores, Evaluations
a. An assessment of the reasonableness of the score(s) for the IOU’s Benchmark
Resource, as applicable.
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b. An independent score of the IOU Benchmark Resource(s), as applicable, and all or a
sample of proposals to determine whether the selections for the initial and final shortlists are reasonable.
c. An evaluation of the unique risks and advantages associated with the Benchmark
Resource(s), including the regulatory treatment of costs or benefits related to actual
construction cost and plant operation differing from what was projected for the
Resource RFP.
d. An assessment of consistency with IOU’s acknowledged Integrated Resource Plan
(IRP).
e. A comprehensive accounting of the risks and benefits to ratepayers for construction cost
over-runs and under-runs, including:

The contractual guarantees or other measures taken by the utility to address the risk
of construction cost over-runs for the benchmark resource;

The cost and prudence of these guarantees;

The remaining exposure to ratepayers for cost over-runs of the benchmark resource;
and

The potential benefits of any construction cost under-runs of the benchmark
resource.
4. IE Closing Report
Due after the IOU has selected the final short-list of proposals (before any
acknowledgment proceeding). As part of the Closing Report, the IE will make its detailed
proposal scoring and evaluation results available to the IOU, OPUC and non-proposing
parties in the regulatory docket, subject to the terms of a protective order. See Attachment
B Guideline 11. The Closing Report will provide the IE’s detailed assessment of the IOU’s
selection of the final short-list of proposals, including all aspects of the solicitation process
and the IE’s involvement, observations, conclusions and recommendations. The reasons
and basis for a) ranking proposals, b) selecting a market proposal(s), and c) rejecting
proposals are to be fully detailed in the Closing Report.
The Closing Report will also include an analysis of whether or the extent to which: 1) the
resources selected minimize long-term costs for the IOU’s retail customers taking into
consideration overall system costs and risks, 2) the solicitation process was fair, 3)
screening factors and weights were applied consistently and comparably to all market
proposals, 4) credit and security requirements, liquidated damages provisions, warranties
and other similar requirements were appropriately applied to proposal evaluation and
appropriately affected the outcome of the solicitation process, 5) all reasonably available
data and information necessary in order for a potential proposer to submit a proposal was
provided, 6) the IE was provided with or given access to all data, information and models
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relevant to the solicitation process in order to permit full and timely scoring, testing and
verification of assumptions, models, inputs, outputs, and results, 7) confidentiality claims
and concerns between the IE, the proposers, and IOU were resolved in a manner that
preserved confidentiality as necessary, yet permitted dissemination and consideration of all
information reasonably necessary for the Resource RFP process to be conducted fairly and
thoroughly, and 8) evaluation was performed consistent with OPUC-approved criteria and
methods.
The report also will include results from the following (see Attachment B Guidelines 10(d)
and 10(e)):
a. Scores for proposals - The IE’s independent scoring of all or a sample of the proposals
to determine whether the selections for the initial and final short-lists are reasonable.
b. Comparison of IOU and IE scores – Comparison between the IOU’s and the IE’s
scoring and evaluation of the competing proposals following a meeting(s) with the IOU
to attempt to reconcile and resolve any scoring differences. Include an explanation of
the reconciliation process and any remaining differences.
In the Closing Report, the IE will be required to disclose any conflict of interest
regarding any of the Resource RFP proposers.
The IE is also tasked with answering, in the Closing Report, the following three
questions:
1. Is there a need for the resource(s)?
2. What is the need (type, size, timing)?
3. Does the final Resource RFP shortlist identify the resource(s) with the best
combination of cost and risk?
5. Resource RFP Document Control and Management
The OPUC preference is for the IE to develop a Resource RFP Website. A Resource
RFP Website is not required, but in its absence the IE is to develop and describe in its
SOQ an alternate Resource Proposal document control and management system with
near equivalent function as the Resource RFP Website described below.
The IE will develop a web site prior to the issuance of the Resource RFP and maintain
such website. The website will be the property of the IOU. At a minimum, the website
will be designed to:
a. Provide 24 X 7 access to Resource RFP documents and data,
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b. Allow resource proposers to post questions that are available to all users, and
comments that are confidential,
c. Maintain confidential proposal folders for each resource proposal, for the retention and
exchange of proposal specific data,
d. Provide confidential evaluation folders for the retention of data provided by the IOU
Resource RFP Evaluation Team, for use during regulatory review,
e. Record all web site activity, including use by registered users, web pages visited, and
access to data by individuals,
f. Provide an announcement board for posting of information to the public and proposers,
and the ability to automatically notify proposers, registered users, and IOU personnel
when documents and announcements are posted.
B. Other Activities*
* Meetings with OPUC to occur in Salem, OR; meetings with the IOU to occur at its
corporate office (Portland, OR for Portland General Electric, and PacifiCorp; and Boise,
ID for Idaho Power, as requested.
1. Confer with OPUC as needed on the IE’s duties - See Attachment B, Guideline 5. This
may be performed in-person, by phone or by e-mail.
2. In consultation with OPUC, participate in additional meetings with parties related to
final short-list selection or any request for acknowledgment of final shortlist.
3. Participate, at the IOU’s discretion either by phone or in person, in the pre-proposal
conference (anticipated two weeks after draft Resource RFP issuance) and make a
presentation to communicate the IE role in the process. Participate in any additional preproposal conferences.
4. Review the IOU’s Resource RFP screening for proposer eligibility.
5. Participate in an OPUC public meeting (if any) to review the OPUC’s decision on
Resource RFP approval, based on the IE’s assessment of the IOU’s Resource RFP
design.
6. Monitor all aspects of the solicitation process for the final short-list of proposals,
including the following:
a. Resource RFP screening
b. Communications between proposers and the IOU before and after proposals are due
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c. Any requested proposer updates
d. Any amendments to the Resource RFP issued by the IOU
e. Evaluation and ranking of proposals
f. Selection of the initial short-list of proposals
g. Selection of the final short-list of proposals
7. Audit the resource proposal evaluation process and validate that evaluation criteria,
methods, models, and other solicitation processes have been applied consistently and
appropriately to all proposals. Verify assumptions, inputs, and results are appropriate
and reasonable.
8. Advise the IOU as early as possible of any issue that might reasonably be construed to
affect the integrity of the solicitation process and provide the IOU an opportunity to
remedy the defect identified. Advise OPUC of significant changes or unresolved issues
as they arise.
9. Compare the IE’s and the IOU’s scoring and evaluation of the competing proposals and
attempt to reconcile and resolve any scoring differences.
10. Participate in OPUC proceedings if the IOU requests acknowledgment of the final
shortlist of proposals. Participation could include written comments filed with the
OPUC and oral comments at an OPUC public meeting or hearing.
11. In the event the IOU requests acknowledgment of the final shortlist, the OPUC may
request the IE to monitor negotiations between the IOU and the proposer(s).
III. EXAMPLE RESOURCE RFP SCHEDULE
The following Resource RFP schedule is an example only. The actual Resource RFP schedule
will be determined by the IOU as required for the specific resource need(s).

IOU submits final draft Resource RFP to OPUC for approval - Week 1

IE submits assessment of RFP – Week 3

Intervenors present comments on RFP – Week 4

IOU response to IE/Intervenor comments – Week 5

IOU issues Resource RFP (up to 8 weeks after final draft Resource RFP filed) - Week 9
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
Proposer responses (due 6 weeks from Resource RFP issuance) - Week 15

IOU’s initial short list is complete – Min. of 8 weeks from date proposer responses due

OPUC consideration of acknowledgment of IOU’s final short-list of proposals (if
requested by IOU) - TBD
IV. INDEPENDENCE AND CONFLICTS OF INTEREST
In Order No. 06-446, the OPUC directed that the IE must be independent of the IOU, potential
Resource RFP proposers, and stakeholder groups. The following are minimum requirements
that must be demonstrated by an entity in its SOQ:
A. Entity shall disclose all business conducted with the IOU or its affiliates, past or present.
B. Entity shall disclose any conflict, or potential conflict of interest, that might arise during the
course of the project, including any potential proposers in the IOU’s Resource RFP.
V. SOQ CONTENTS
Entity must include A, B, and C as follows in its SOQ:
A. Independence and Conflicts of Interest
Each SOQ shall include a conflict of interest declaration identifying any conflict, or potential
conflict of interest, which might arise during the course of the project including conflicts with
any potential Resource RFP proposers in the IOU’s Resource RFP, and stakeholder groups.
The declaration shall disclose any past, current or anticipated future relationship with or work
for the IOU, potential Resource RFP proposers, or stakeholder groups. This disclosure should
specify the date, nature and scope of any such relationship or work. Entity shall provide all
information necessary to fully comply with Section IV above.
B. Preferred Contact Method
Each SOQ shall identify the preferred contact person, contact information, and contact method
to be used for notification of SOQ results, and receipt of invitations to respond to IE-RFPs that
may be issued in the future.
C. Required Checklist
Each SOQ shall include the checklist in Attachment A, completed by the IE-RFQ respondent.
D. Optional Submittals
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Detailed response containing:
1. A complete narrative of the entity’s assessment of the work to be performed, the entity’s
ability and approach, and the resources necessary to fulfill the requirements. This should
demonstrate the entity understands the performance expectations. Clearly indicate any
options or alternatives proposed.
2. A specific point-by-point response by task number (e.g., “A1”), in the order listed in
Section II, Description of Work, to each requirement in this RFQ.
3. Qualification and expertise of staff proposed to perform all IE functions identified in the
Competitive Bidding Guidelines.
4. Experience and competence in assessment, evaluation and monitoring related to
competitive acquisition of energy resources. Such experience should include evaluating
supply alternatives including production cost modeling to evaluate cost and risk.
5. Work samples demonstrating such expertise and competence, including work samples
demonstrating the entity’s willingness and ability to work independently of the IOU and
to rigorously review, evaluate, and critique the IOU’s Resource RFP for energy
resources.
6. Performance references for similar projects.
7. Any objections to any materials terms of the Sample Professional Services Agreement
included as Attachment D.
Note: A conference phone call presentation by an entity to clarify its SOQ may be required.
VI. SOQ SUBMITTAL REQUIREMENTS
Two (2) copies of each SOQ, one of which must bear the original signature, must be
received no later than time and date identified above. OPUC also requests that a copy of the
SOQ be submitted electronically (suggested via PDF in email or on CD).
SOQs shall be addressed to:
Erik Colville, PE
Public Utility Commission of Oregon
P.O. Box 1088
Salem, OR 97302-1088
Telephone: (503) 378-6360
[email protected]
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Each SOQ shall be submitted in the format outlined in Section V. Each SOQ shall be prepared
on standard 8 ½ inch by 11 inch paper, duplex printed (2 sided). Each SOQ shall be stapled or
bound separately. THE SOQ MUST BE ORGANIZED IN THE SAME ORDER AS THE
INFORMATION REQUESTED IN THIS RFQ. OPUC may reject any SOQ that fails to follow
these instructions.
VII. PASS/FAIL SCORING CRITERIA
From the information submitted in accordance with Section V SOQs will be given a pass/fail
score based upon the following:
A. The IE must be independent of the IOU, potential Resource RFP proposers, and stakeholder
groups.
B. Understanding of the description of work and the deliverables (see Section II.A) that will
meet it.
C. Training, experience and ability of the entity and its individual staff member(s) that will be
assigned to perform the proposed work, including, but without limitation, specific
experience as IE for reviewing Capacity, Renewable Energy, Baseload Energy, and
methane gas supply resource RFPs.
D. Completion and submittal of the SOQ Checklist.
VIII. PROCESS FOR ROSTER DEVELOPMENT
A. Evaluation
1. Initial Review: OPUC will review all SOQs to ensure that all prescribed provisions and
procedures have been met. SOQs that do not meet all prescribed solicitation procedures
and requirements may be rejected and eliminated from the selection process.
2. Scoring: A pass/fail score will be given, based on the criteria outlined in Section VII.
Pass/Fail Scoring Criteria above. Those SOQs that receive a passing score will be
included on the IE roster. (Inclusion/Exclusion on this roster will not guarantee/prohibit
qualified entities from being considered as IE in future RFP processes.)
B. Results Notification
The OPUC will attempt to notify every entity submitting an SOQ of its evaluation and roster
status within 4 weeks of releasing the roster.
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IX. CONTRACT INFORMATION
A. Professional Services Contract
1. The selected IE will be required to enter into a professional services contract with the
IOU based on the description of work described herein and in a form substantially
similar to the form attached to this IE-RFQ. OPUC will review the draft IE contract
prior to execution to ensure that it conforms to this IE-RFQ.
2. The State of Oregon will not be a party to the resulting contract, and will not be
responsible for any conflicts that arise between the IOU and the selected IE.
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ATTACHMENT A – SOQ Checklist
This checklist is to be read and understood in concert and context with the IE-RFQ.
Fully
Understand and
Agree
Exception or
Deviation
(Fully Explain
on a Separate
Sheet)
General:
The IE must be independent of the IOU and
potential Resource RFP proposers.
The IE shall confer with OPUC as needed
throughout performance of the IE's duties under
the Competitive Bidding Guidelines. The IE shall
oversee the RFP process to ensure it is conducted
fairly and properly.
The OPUC preference is for the IE to develop a
Resource RFP Website. A Resource RFP Website
is not required, but in its absence the IE is to
develop and describe in its SOQ an alternate
Resource Proposal document control and
management system with near equivalent function
as the Resource RFP Website described in RFQ
Section II.
Specific:
Confer, as needed, with OPUC to clarify the IE’s
duties. Submit a monthly status report to OPUC.
Attend a project kick-off meeting with OPUC and
IOU staff at IOU office if requested.
Review IOU prepared draft RFP for compliance
with the Guidelines and industry norms. Work
with IOU to result in the final draft RFP.
Work with IOU to develop the bid process and bid
evaluation approach.
Assist IOU to prepare for proposer and
stakeholder workshops. Schedule and attend a
meeting with OPUC prior to the workshops as
needed. Attend and participate in the workshops.
Prepare documentation of attendees and
discussions during the workshops.
Prepare and submit to the OPUC an Assessment of
the final draft RFP. Respond to OPUC questions
about the Assessment.
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Work with IOU to respond to proposer and
stakeholder questions and comments.
Assist OPUC in evaluating and responding to
Docket party comments and reply comments.
Perform this work by phone email, or web
meeting.
Review IOU’s bid evaluation to check whether its
evaluation and selection of the shortlist are
reasonable.
Independently evaluate all, or a representative
sample, of the bids to determine whether the initial
and final shortlists are reasonable.
Compare IOU’s evaluation results with IE’s
independent evaluation results, and resolve any
differences if possible.
Review IOU selection of final short list. Ensure it
is based in part on modeling the effect of the
initial shortlist of bids on overall system costs and
risks. The portfolio modeling and decision criteria
shall be consistent with the modeling and decision
criteria used in the acknowledged IRP action plan.
Prepare a Closing Report after IOU selection of
the final shortlist. The Closing Report shall
explain any IOU and IE proposer evaluation
differences, and consistency of the final shortlist
with the IRP modeling and decision criteria.
The IE is also tasked with answering, in the
Closing Report, the following three questions:
1. Is there a need for the resource(s)?
2. What is the need (type, size, timing)?
3. Does the final Resource RFP shortlist
identify the resource(s) with the best
combination of cost and risk?
Participate in the OPUC public meetings for
approval of the final draft RFP (by phone) and
potential acknowledgement of final short list (in
person).
Qualifications
Match
Requirements
Qualifications
Similar to
Requirements
(Fully Explain
on a Separate
Sheet)
Experienced and competent to perform all IE
functions identified in the Competitive Bidding
Guidelines.
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Relevant training, experience and ability of the
entity and its individual staff member(s) that will
be assigned to perform the proposed work.
Experience and competence in assessment,
evaluation, and monitoring related to competitive
bidding for energy resources:
In the WECC
In the Pacific Northwest
In Oregon
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ATTACHMENT B - OPUC Competitive Bidding Guidelines
Refer to Commission Order 06-446 http://apps.puc.state.or.us/orders/2006ords/06-446.pdf ,
Order 11-001 http://apps.puc.state.or.us/orders/2011ords/11-001.pdf , and
Order 11-340 http://apps.puc.state.or.us/orders/2011ords/11-340.pdf .
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ATTACHMENT C – Sample Scope of Work
General:
The IE shall act as an extension of OPUC Staff. As such the IE shall confer with OPUC as
needed throughout performance of the IE's duties under the Competitive Bidding Guidelines.
The IE shall oversee the Resource RFP process to ensure it is conducted fairly and properly.
Specific:
Confer, as needed, with OPUC to clarify the IE’s duties. Submit a monthly status report to
OPUC.
Attend a project kick-off meeting with OPUC and the IOU staff at the IOU’s office if
necessary.
SAMPLE
Review IOU prepared draft Resource RFP for compliance with the Guidelines and industry
norms. Work with the IOU to result in the final draft Resource RFP.
Work with the IOU to develop the proposal process and proposal evaluation approach.
Assist the IOU to prepare for proposer and stakeholder workshops. Schedule and attend a
meeting with OPUC prior to the workshops if necessary. Attend and participate in the
workshops. Prepare documentation of attendees and discussions during the workshops.
Prepare and submit to the OPUC an Assessment of the final draft Resource RFP. Respond to
OPUC questions about the Assessment.
Work with the IOU to respond to proposer and stakeholder questions and comments.
Assist OPUC in evaluating and responding to Docket party comments and reply comments.
Perform this work by phone, email or web meeting.
Review the IOU’s proposal evaluation to check whether their evaluation and selection of the
shortlist are reasonable.
Independently evaluate all, or a representative sample, of the proposals to determine whether
the initial and final shortlists are reasonable.
Compare the IOU’s evaluation results with the IE’s independent evaluation results, and resolve
any differences if possible.
Review IOU selection of final short list. Ensure it is based in part on modeling the effect of the
initial shortlist of proposals on overall system costs and risks. The portfolio modeling and
decision criteria shall be consistent with the modeling and decision criteria used in the
acknowledged IRP action plan.
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Prepare a Closing Report after IOU selection of the final shortlist. The Closing Report shall
explain any IOU and IE proposal evaluation differences, and consistency of the final shortlist
with the IRP modeling and decision criteria. For clarity sake, the OPUC tasks the IE with
answering, in the Closing Report, the following three questions:
1. Is there a need for the resource(s)?
2. What is the need (type, size, timing)?
3. Does the final Resource RFP shortlist identify the resource(s) with the best
combination of cost and risk?
Participate in the OPUC public meetings for approval of the final draft Resource RFP (by
phone) and, potentially, acknowledgement of final short list (in person).
SAMPLE
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ATTACHMENT D - Sample IOU Professional Services Agreement
The following sample IOU Professional Services Agreement is an example only. The actual
Agreement will be determined by the IOU as required for the specific services needs.
1. Complete Agreement ........................................................................................... 2
2. Scope of Work; Persons to Contact Regarding Work and Agreement ................. 2
3. Changes ............................................................................................................... 3
4. Price and Payment ............................................................................................... 3
SAMPLE
5. Independent Consultant ....................................................................................... 4
6. Amendment; Assignment and Subcontracts ........................................................ 5
7. Performance Standard ......................................................................................... 5
8. Business Ethics .................................................................................................... 5
9. Public Releases .................................................................................................... 5
10. Consultant’s Personnel/Hiring of Convicted Felons/Drugs Alcohol and Firearms 6
11. Reports ................................................................................................................. 7
12. Right to Audit ........................................................................................................ 7
13. Ownership of Work ............................................................................................... 8
14. Infringement ......................................................................................................... 8
15. Liens ..................................................................................................................... 9
16. Indemnification ..................................................................................................... 9
17. Protection of Workers ........................................................................................... 9
18. Liability Insurance ............................................................................................... 10
19. Controlling Law and Venue ................................................................................ 12
20. Termination ........................................................................................................ 12
21. Notice ................................................................................................................. 13
22. Remedies and Nonwaiver .................................................................................. 14
23. Governmental Requirements .............................................................................. 14
24. Hazardous Substances ...................................................................................... 14
25. Confidentiality ..................................................................................................... 15
26. Warranties .......................................................................................................... 17
27. Conflicts, Errors, Omissions, or Discrepancies ................................................... 17
28. Severability ......................................................................................................... 17
29. Attorney Fees ..................................................................................................... 18
30. Examination of Work .......................................................................................... 18
31. Time for Performance ......................................................................................... 18
32. Force Majeure .................................................................................................... 18
33. Disputes ............................................................................................................. 18
34. Authorized Representative ................................................................................. 19
35. No Third Party Beneficiaries ............................................................................... 19
36. Successors and Assigns .................................................................................... 19
1
37. Effective Date ..................................................................................................... 19
38. Counterparts ....................................................................................................... 19
SAMPLE
2
Master Professional Services Agreement
This Master Professional Services Agreement (“Master Agreement”) is between
Oregon Investor Owned Utility (“IOU”), and
__________________________, whose address is ___________________________
(“Consultant”).
1. Complete Agreement
This Master Agreement describes the terms and conditions under which Consultant
shall provide professional services to IOU as described in any statement of work
signed by both parties (each an “SOW”). Each SOW, this Master Agreement, and
any schedules, exhibits, amendments, or documents executed by the parties in
connection with the SOW, constitute the complete agreement between IOU and
Consultant with respect to the subject matter described in such SOW (“Agreement”)
and supersede all prior negotiations, representations or agreements, whether oral or
written, related to such SOW. The SOW shall operate to supplement the terms of
this Master Agreement but shall not modify, contradict or otherwise change the
terms hereof. Except as otherwise expressly stated in writing, in the case of any
inconsistency, the terms of this Master Agreement shall control. No other terms,
conditions or provisions shall be part of the Agreement or be binding on IOU unless
specifically accepted by IOU in writing.
SAMPLE
2. Scope of Work; Persons to Contact Regarding Work and Agreement
For the payment described in the SOW Consultant shall perform the work described
therein in strict accordance with the provisions of the Agreement. Except as
otherwise provided in the Agreement, Consultant shall provide all goods, property
and services necessary for the proper execution and final completion of the Work
described in the Agreement, including without limitation furnishing all personnel,
labor, supervision, technical, professional and other services, materials, supplies,
equipment, goods and other property, transportation, information, drawings, plans,
specifications, designs, and data (collectively, the “Work”).
The date that Consultant shall commence performance and complete the Work shall
be stated in the SOW.
The person to whom questions regarding the Work or schedule should be directed
to:
Questions regarding the Agreement shall be directed to:
3
3. Changes
IOU may, by a proposed written Change Order, order changes to the quantity
and/or the specifications of Work, and the parties will undertake to negotiate an
appropriate adjustment in price and terms where Consultant’s direct costs or the
time for performance are materially affected by IOU’s proposed changes. Within
ten (10) days of receiving notification of a proposed change, Consultant shall submit
to IOU a detailed written proposal for accomplishing the changes and setting forth
any proposed adjustments to the purchase price or other terms (and the bases for
each adjustment) if Consultant intends to assert a claim for adjustment. If the
parties reach agreement as to the appropriate adjustments, IOU shall issue its final
Change Order amending the Agreement accordingly. If IOU and Consultant are
unable to agree on the appropriate adjustments, IOU may terminate the Agreement
pursuant to Section 20 below, or may issue its Change Order requiring such
changes, in which event the equitable adjustment shall be limited to the actual out-ofpocket cost incurred by Consultant in performance of the Agreement as modified
plus a reasonable sum as profit on the Work, which shall constitute full
compensation to Consultant for the change.
SAMPLE
No change shall be binding upon IOU until a Change Order is executed by an
authorized representative of IOU that expressly states that it constitutes a
supplement to the Agreement. THE ISSUANCE OF INFORMATION, ADVICE,
APPROVALS OR INSTRUCTIONS BY ANYONE OTHER THAN THE
AUTHORIZED REPRESENTATIVE OF IOU SHALL NOT CONSTITUTE AN
AUTHORIZED CHANGE TO THE AGREEMENT.
Nothing contained in this section shall excuse Consultant from proceeding with the
Work in accordance with the Agreement.
4. Price and Payment
A. Fees
For satisfactory performance of the Work, IOU shall pay Consultant the fees
specified in the SOW. Consultant shall be exclusively liable for payment to
the appropriate governmental authority of all payroll and other employees'
contributions and taxes required in respect of Consultant's work and that of
its employees, including, but not limited to, taxes imposed under the
provisions of any unemployment insurance, Social Security or pension plan.
Prior to final payment, Consultant shall, if requested, provide the estimated
cost breakdown of scope of taxes, insurance, transportation and items of
equipment in accordance with a code of accounts provided by IOU.
4
B. Expenses
If the SOW includes the payment of Consultant incurred expenses, all
Consultant expenses submitted for payment or reimbursement shall conform
to IOU’s Policy on Contractor Expenses, a copy of which is attached hereto
and incorporated herein as Exhibit A. Unauthorized expenses shall not be
paid or reimbursed.
C. Invoices
All invoices shall reference the SOW and, when required, copies of
supporting documentation and proof of expenditures. Invoices shall be
addressed as follows:
INVOICES THAT DO NOT CONTAIN THE REQUIRED INFORMATION, OR
ARE NOT ADDRESSED AS INDICATED ABOVE MAY RESULT IN
PAYMENT DELAY.
SAMPLE
Payment(s) shall be made by IOU within thirty (30) days of the later of
receipt and approval of a proper invoice, or IOU’s acceptance of the Work
invoiced.
Without limiting any other rights or remedies IOU may have, IOU may set
off any loss, damage, liability or claim that IOU may have against Consultant
against any performance or payment due to Consultant under this or any
other contract between the parties. IOU may also retain from any payments
due under the Agreement sufficient funds to discharge any delinquent
accounts of Consultant for which liens on IOU’s property have been or could
be filed, and IOU may apply the funds at any time to pay for Consultant’s
account any amounts admittedly due, including any sums due under any
federal or state law.
5. Independent Consultant
Consultant is acting solely as an independent contractor and nothing in the
Agreement is intended to create a partnership, joint venture, or any relationship of
principal-agent, employer-employee, franchiser-franchisee, or master-servant
between Consultant and IOU.
6. Amendment; Assignment and Subcontracts
No change, amendment or modification of any provisions of the Agreement shall be
valid unless set forth in a written instrument signed by authorized representatives of
IOU and Consultant, except as set forth in Section 3 (Changes). Consultant may
not assign or transfer the Agreement and the rights and responsibilities under the
Agreement, in whole or in part, and may not subcontract any portion of the
5
Agreement or the Work without IOU's prior written consent.
7. Performance Standard
Consultant and its affiliates and their respective officers, employees, agents, and
subcontractors that perform any portion of the Work shall be fully experienced and
properly qualified, licensed, and equipped to perform such Work and their
obligations under the Agreement. In performing services under the Agreement,
such persons shall meet at least the standards of professional skill, care, and
judgment normally exercised by a professional in the performance of services
similar to those contemplated by the Agreement. Consultant shall be responsible
for all methods, means and procedures necessary to properly complete and
safeguard the Work. When on IOU premises and work site, the conduct of
Consultant and its affiliates and their respective employees, agents, affiliates, and
subcontractors shall conform to generally applicable IOU rules and standards,
including but not limited to those related to environmental protection, loss control,
dust control, safety and security.
SAMPLE
8. Business Ethics
Consultant shall exercise reasonable care and diligence to prevent any actions or
conditions which could result in a conflict with IOU's interest. Consultant and its
employees and agents shall not offer or cause to be offered gifts, entertainment, or
other services, benefits or consideration to IOU employees or their families other
than those that are customary and commonly accepted business courtesies; not
excess in value (and in any case not valued at more than $100); and given without
an implied or express understanding that the gift is an inducement or reward for a
particular business decision. Consultant shall immediately notify IOU of any and all
violations of this clause upon becoming aware of such violation.
9. Public Releases
Nothing contained herein shall permit or be deemed to permit use by Consultant of
IOU’s name, directly or indirectly, in the form of advertising or in a press release
without the prior written approval of IOU.
10. Consultant’s Personnel/Hiring of Convicted Felons/Drugs Alcohol and Firearms
A. Definitions
The following terms shall have the meanings set forth below: (i) “chemical
substance” or “drug” means any chemical substance producing physical,
mental, emotional or behavioral change in a person; (ii) “illegal drug” means
any drug listed in Schedules I through V of the federal Controlled Substances
Act, as amended, that is not obtained and used in accordance with the law
including, but not limited to opiates, hallucinogens, depressants, stimulants
6
and narcotics; and (iii) “under the influence” means exhibiting evidence of
alcohol or drugs in the urine, blood or breath, or the impairment of mental or
physical abilities to any perceptible degree.
B. IOU’s Premises or Job Site
Consultant shall see that its employees and agents and the employees and
agents of its subcontractors of any tier (individually and collectively,
“Personnel”) do not engage in any of the following while on IOU’s premises
or job site in connection with the Agreement:
• Be under the influence or use alcohol, illegal drugs or chemical
substances.
• Sell, offer to sell or buy, possess, use, or transfer any illegal drug.
• Fail to use lawfully prescribed or over-the-counter medication in
accordance with the directions or as instructed by the prescribing
physician.
SAMPLE
• Fail to notify a supervisor that Personnel is taking prescription or over-the counter
medication, which from previous use or warning/instruction from
the prescribing physician or container label could impair or adversely
affect all or any portion of his or her job performance.
• Refuse or fail to provide any sample or to cooperate with alcohol and drug
testing as required by the Agreement.
• Provide an adulterated or substituted urine sample or diluted urine sample
with the intent to change the test results.
• Refuse to submit to a search or to cooperate with a search related to any
investigation where there is reasonable suspicion to believe any
Personnel is in possession of alcohol or any illegal drugs.
• Operate any vehicle while under the influence of alcohol or illegal drugs.
• Possess any firearm, weapon or explosive of any kind without IOU’s prior
express written approval (this also applies to Personnel who have a permit
for a concealed weapon).
• Act or fail to act with the intent to facilitate or assist anyone to do any of
the above.
C. Generally
Consultant shall see that only properly qualified Personnel are employed in
7
performing the Work and that strict discipline and good order among
Personnel is enforced at all times. Consultant shall see that any Personnel
who have been convicted of a felony involving violence, fraud, alcohol and/or
drugs within seven (7) years of the date of the Agreement are not assigned to
perform any of the Work without the prior written consent of IOU. If, at any
time, it is discovered by IOU or Consultant that any Personnel: (i) has failed to
comply with any of the above prohibitions; (ii) is incompetent, insubordinate,
careless, or disorderly; or (iii) while previously employed by IOU violated any
IOU policies, the Personnel shall be immediately removed from the Work and
not assigned to perform any part of the Work. Failure to comply with the
requirements of this Section 10 may result in suspension of payments under
Consultant’s engagement with IOU or termination of the engagement, or
both.
11. Reports
Consultant shall prepare and submit progress reports to IOU on a regular basis as
agreed by both parties during the period of performance of the Work. Each
progress report shall be in sufficient detail to describe all work accomplished and
results achieved during the calendar month(s) immediately preceding the month in
which the report is submitted. The calendar month(s) and year reported on shall be
indicated on each progress report. If requested by IOU, Consultant shall also
submit to IOU a report of all studies, surveys, evaluations, analyses, calculations,
drawings, and documentation made in planning or preparing for performance of the
Work. IOU or its representatives may visit Consultant’s place of business at
reasonable times to determine status of ongoing activities required by the
Agreement.
SAMPLE
12. Right to Audit
Consultant shall keep accurate and complete accounting records in support of all
cost billings to IOU in accordance with generally recognized accounting principles
and practices. IOU, or its audit representatives, shall have the right at any
reasonable time or times to examine, audit and reproduce such records, vouchers
and their source documents. Such records shall be available for examination, audit
and reproduction for three (3) years after the completion or termination of the
Agreement.
13. Ownership of Work
All materials prepared or developed pursuant to or in connection with the Agreement
by Consultant and its affiliates and their respective employees, directors, officers,
subcontractors, or agents, including, but not limited to, improvements, ideas,
formulas, processes, inventions, programs, documents, calculations, maps,
sketches, designs, tracings, notes, reports, data, computer programs, models, plans
and samples, shall become the property of IOU when prepared, whether delivered
8
to IOU or not, and shall, together with any materials furnished Consultant and its
affiliates by IOU pursuant to the Agreement, be delivered to IOU upon request,
and, in any event, upon termination or final acceptance of the Work. All Work
prepared by Consultant and its affiliates and their respective employees, directors,
officers, agents or subcontractors pursuant to or in connection with the Agreement
that is subject to protection under copyright laws constitutes “work made for hire,” all
copyrights to which belong to IOU. In any event, Consultant assigns to IOU all
intellectual property rights in such work whether by way of copyright, trade secret,
patent or otherwise, and whether or not subject to protection by patent, trademark or
copyright laws and agrees to execute all documents that IOU reasonably
determines to be necessary or convenient for use in applying for, perfecting or
enforcing intellectual property rights, including, but not limited to, the execution of
any assignments and patent, trademark or copyright applications.
14. Infringement
Consultant shall at its sole expense defend any action brought or threatened against
IOU that is based on a claim that any of the Work: (i) infringes a copyright
enforceable in the United States, (ii) infringes any patent or (iii) constitutes
misappropriation or unlawful disclosure or use of another's trade secret.
In addition to any other indemnification stated in the Agreement, Consultant shall
indemnify, defend and hold harmless IOU, its parent and affiliated companies and
their directors, officers, employees and agents against and from all claims, losses,
costs, suits, judgments, damages and expenses, including but not limited to required
royalties or license fees and attorneys’ fees, whether or not suit is commenced and
on trial and appeal, of any kind or nature whatsoever, on account of infringement,
misappropriation, or unlawful disclosure of any patent, copyrighted or uncopyrighted
work, secret process, trade secret, unpatented invention, article, appliance or
otherwise, including claims thereof pertaining to, or arising from Consultant’s
performance of Work under the Agreement.
SAMPLE
If Consultant’s equipment, material or processes are likely to become or do become
the subject of a claim of infringement or misappropriation of a U.S. patent, copyright,
trade secret or other proprietary right, Consultant, upon IOU’s prior written consent,
may either: (i) promptly replace the equipment, material or processes with a
substantially compatible and functionally equivalent non-infringing product; (ii)
promptly modify the equipment, material or processes to make it non-infringing and
functionally equivalent; (iii) promptly procure the right of IOU to continue using the
equipment, material or processes; or (iv) if none of the first three options is
commercially feasible, refund all amounts already paid by IOU to Consultant.
15. Liens
Consultant shall ensure that no liens of any kind are fixed upon or against the real or
personal property of IOU by Consultant, Consultant’s supplier, subcontractors or
subcontractor’s employees.
9
16. Indemnification
In addition to any other indemnification provided for under the Agreement,
Consultant shall indemnify, defend and hold harmless IOU, its parent and affiliated
companies and their directors, officers, employees and agents (hereinafter
collectively “Indemnitees”) from any and all claims, demands, suits, losses, costs,
expenses, liens, encumbrances, liabilities, governmental fines and penalties and
damages of every kind and description, including attorneys’ fees, whether or not suit
is commenced and on trial and appeal, brought or made against or incurred by any
of the Indemnitees resulting from, arising out of, or in any way connected with any
act, omission, fault or negligence of Consultant and its affiliates and their respective
employees, agents, representatives or subcontractors in the performance or
nonperformance of Consultant’s obligations under the Agreement or in any way
related to the Agreement. The indemnity obligations under this section shall include
without limitation: (i) loss of or damage to any property of IOU, Consultant or any
third party; (ii) injury, bodily or personal, disease, occupational sickness, or death of
any person(s), including without limitation, IOU, Consultant and its affiliates and
their respective employees, agents, representatives or subcontractors; and
(iii) claims arising out of workers’ compensation, unemployment compensation or
other laws or obligations applicable to Consultant or its affiliates and their respective
employees, agents, representatives or subcontractors.
SAMPLE
CONSULTANT’S INDEMNITY OBLIGATION UNDER THIS SECTION SHALL NOT
EXTEND TO ANY LIABILITY CAUSED BY THE SOLE NEGLIGENCE OF ANY OF
THE INDEMNITEES.
17. Protection of Workers
Contractor and its affiliates and their respective employees, agents, and
subcontractors shall comply with all applicable workers’ compensation acts,
including but not limited to the federal Longshore and Harbor Workers’
Compensation Act and Jones Act, continuously carry workers’ compensation
insurance, accept exclusive liability as an employer in the states having jurisdiction,
and shall furnish proof thereof satisfactory to IOU prior to commencing Work.
Furthermore, such Workers’ Compensation coverage as provided by Contractor and
its subcontractors must waive all rights of subrogation against IOU
18. Liability Insurance
Prior to starting any Work, Contractor and subcontractors of any tier shall secure and
continuously carry and supply evidence thereof, with insurers reasonably acceptable to
IOU (minimum AM Best rating of A- VIII or better), the minimum insurance specified in
this Section. The issuance or maintaining of insurance of any type by Contractor shall
not be deemed or construed to release, limit, waive or discharge Contractor from any
and all of the obligations and risks imposed by this Agreement upon Contractor,
10
including any liability in excess of the insurance coverage required herein. Neither shall
any forbearance nor omission by IOU to require proof of insurance from Contractor
before permitting Contractor to proceed or continue with the Services be deemed a
waiver of IOU’s rights or Contractor’s obligations regarding the provisions of insurance
under this Agreement. Contractor shall be responsible for the cost of satisfying any
deductible for claims made under the coverage required below.
• Employers Liability insurance with limits not less than:
$2,000,000 each accident for bodily injury by accident
$2,000,000 policy limit for bodily injury by disease
$2,000,000 each employee for bodily injury by disease
• Commercial General Liability insurance covering all operations by or on behalf
of Contractor providing insurance for Bodily Injury and Property Damage for
limits of liability of not less than indicated below and including coverage for:
SAMPLE
$2,000,000 each occurrence
$2,000,000 for personal injury and advertising injury liability
$2,000,000 aggregate for products and completed operations
$2,000,000 general aggregate
CLAIMS MADE COVERAGE IS NOT ACCEPTABLE FROM CONTRACTOR OR
ANY SUBCONTRACTOR.
• Business Automobile Liability insurance with a minimum combined single limit
of $2,000,000 per accident for bodily injury and property damage with respect to
Contractor’s vehicles whether owned, hired or non-owned, assigned to or used
in the performance of the Work.
• Professional Liability [if applicable] insurance with a limit of not less than
$1,000,000 per claim and $1,000,000 in the aggregate.
• Pollution Liability [if applicable] insurance providing sudden and accidental
pollution coverage with a limit of $1,000,000 per occurrence and $1,000,000 in
the aggregate.
• PRIOR TO USING AN AIRCRAFT AND/OR WATERCRAFT OF ANY KIND IN
PERFORMING THE WORK UNDER THIS AGREEMENT, CONTRACTOR
SHALL NOTIFY IOU AND OBTAIN ITS PRIOR WRITTEN CONSENT [if
applicable]. If an aircraft or watercraft is to be used in performing the Work
under this Agreement, Aircraft Liability and/or Protection & Indemnity insurance
covering fixed wing, rotorcraft aircraft and watercraft whether owned, hired or
non-owned with a minimum single limit for bodily injury and property damage of
$10,000,000 including passenger liability coverage (where applicable) is
required.
11
• Specified limits may be met through any combination of primary and excess
liability policies. With the exception of Workers’ Compensation and Professional
Liability the policies required herein shall include IOU, its directors, officers and
employees as Additional Insureds by endorsement or otherwise and such
coverage shall cover Contractor’s ongoing as well as completed operations (CG
20 10 11 85 or equivalent). The coverage provided to the Additional Insured
must be at least as broad as that provided to Contractor and may not contain
any exclusionary language or limitations that are applicable to them, and such
endorsements shall be maintained in force until such time as all actions on
account of matters covered by this insurance are barred by applicable statute of
limitations.
All policies specified by this Agreement shall include provisions that such insurance is
primary insurance with respect to the interests of IOU and that any other insurance or
self-insurance maintained by IOU is in excess of and not contributory with the
insurance required hereunder, and provisions that such policies shall not be canceled
or their limits of liability reduced without thirty (30) days prior written notice to IOU. A
certificate in a form satisfactory to IOU certifying the issuance of such insurance shall
be furnished to IOU.
SAMPLE
All renewal and/or replacement insurance shall comply with all the terms and conditions
set forth in this Agreement, and must be delivered to IOU prior to expiration of the
previous policy(ies).
With respect to any insurance Contractor may maintain, including but not limited to
that set forth herein, Contractor warrants that Contractor has the right to waive any
and all rights of subrogation which Contractor’s insurance carriers might have or
claim against IOU, including its officers, agents, legal counsel, employees, affiliates,
parents, and subsidiaries in connection with the Work. Contractor hereby waives all
such present and future rights of subrogation and agrees to defend and indemnify
IOU, including its officers, directors, agents, legal counsel, employees, affiliates,
parents, and subsidiaries in connection with the Work from all such subrogation
claims. Contractor shall require of its subcontractors similar waivers. Contractor’s
and its subcontractor’s policies shall provide such waivers by endorsement or
otherwise. A waiver of subrogation shall be effective as to a person or entity even
though that person or entity did not pay the insurance premium directly or indirectly
and whether or not the person or entity had an insurable interest in the property
damaged or person injured.
Contractor shall report in writing to IOU all accidents whatsoever arising out of or in
connection with the Work which results in death, injuries, or property damage, giving full
details and names, addresses and statements of all witnesses. In addition, if death or
serious injuries or serious damage occur, the same shall be reported immediately by
telephone to IOU. If any claim is made by a third person against Contractor on
account of any accident resulting or alleged to have resulted out of the performance of
12
the Work, Contractor shall promptly report the facts in writing to IOU giving full details
of the claim.
19. Controlling Law and Venue
The Agreement shall be interpreted in accordance with and governed by the
substantive and procedural laws of the state of Oregon without regard to choice-oflaw
principles. Consultant irrevocably consents to the jurisdiction of the courts of the
state of Oregon or of the U.S. District Court for the District of Oregon for any action,
suit, or proceeding in connection with the Agreement and waives any objection that
consultant may now or hereafter have regarding choice of forum.
20. Termination
A. Term
This Master Agreement will commence on its effective date and will continue until
it is terminated in accordance with its terms.
SAMPLE
B. Termination of this Master Agreement
Either party may terminate this Master Agreement by providing at least thirty (30)
days’ written notice to the other.
C. Termination of SOW(s) For Convenience
IOU may, by a written notice to Consultant, terminate one or more
outstanding SOW(s) at any time without cause prior to completion of the
Work thereunder. Upon termination for convenience, IOU's sole obligation
shall be to pay Consultant, in full satisfaction and discharge of all liabilities
and obligations owed to Consultant, an equitable amount for all Work
satisfactorily performed by Consultant under the terminated SOW(s) as of the
date of termination, excluding damages or anticipated profits on Work not yet
performed.
D. Termination of SOW(s) For Cause
In the event of any breach of an Agreement by Consultant (including but not
limited to Consultant's failing or refusing to prosecute the Work or any part
thereof with the diligence required to ensure its completion within the time
specified in the Agreement, or failing to complete the Work within such time)
that Consultant fails to cure within five (5) days after receiving written notice
from IOU, in addition to any other rights or remedies IOU may have at law
or in equity, IOU may, by written notice to Consultant, terminate the
applicable SOW or terminate Consultant's right to proceed with any portion of
the Work as to which there has been a breach. In such event, IOU may, but
13
shall not be obligated to, take over the Work and prosecute the same to
completion, by contract with others or otherwise, and Consultant shall
cooperate fully with IOU’s effort including by allowing IOU to take
possession of and utilize in completing the Work any portions thereof as IOU
deems necessary. Consultant shall be liable to IOU for any excess costs
and damages occasioned by Consultant’s breach.
E. Effect of Termination
Termination of this Master Agreement will not terminate any outstanding
SOW and the terms of this Master Agreement shall survive such termination
to the extent they are incorporated into any such outstanding SOW.
Termination of any or all SOWs will not terminate this Master Agreement.
Upon termination, all rights and obligations of the parties under the
terminated Agreement will automatically terminate except for rights of action
accruing prior to termination, payment obligations and any obligations that
expressly or by implication are intended to survive termination.
21. Notice
SAMPLE
Any notice that either party desires to give the other shall be in writing and shall be
deemed delivered upon deposit thereof in the United States mail by certified mail
return receipt requested, with postage thereon fully prepaid, addressed as follows:
To IOU:
To Consultant: [____________________________]
22. Remedies and Nonwaiver
The remedies specified in the Agreement shall be cumulative and in addition to any
other remedies available at law or in equity. No waiver of the nonperformance or
violation of any term or condition of the Agreement or any default under the
Agreement shall be construed to be or operate as a waiver of any subsequent
nonperformance, violation, or default.
23. Governmental Requirements
Consultant shall at all times comply with all applicable laws, statutes, rules,
regulations and ordinances, including without limitation those governing wages,
hours, desegregation, employment discrimination, health and safety. Consultant
shall comply with equal opportunity laws and regulations to the extent that they are
applicable, including without limitation, the following:
14
• Executive Order No. 11246 and 41 CFR, Section 60-1.4 (Employment
Discrimination)
• Executive Order No. 11701 and 41 CFR, Section 60-250.4 (Employment of
Veterans)
• Executive Order Nos. 11625 and 12138 and 41 CFR, Part 1-1 (Utilization of
Minority and Women-Owned Businesses)
• Executive Order No. 11758 and 41 CFR, Section 60-741.43 (Employment of
Handicapped Individuals)
• Executive Order No. 12928 (Promoting Procurement with Small Businesses
Owned and Controlled by Socially and Economically Disadvantaged
Individuals
• Age Discrimination in Employment Act of 1967, as amended
SAMPLE
• Immigration Reform and Control Act of 1986, as amended
24. Hazardous Substances
Consultant shall notify IOU, in advance in writing, of the use of any hazardous
substance in performing the Work by providing IOU a list of such hazardous
substances and their Material Safety Data Sheets. IOU reserves the right to
approve or disapprove the use of any hazardous substance in the performance of
the Work including work plans on the use, storage, transportation and disposal of
hazardous substances. Consultant shall comply with all applicable federal, state or
local statutes, regulations, ordinances, and judicial or governmental orders
pertaining to the use of hazardous substances at the job site. Upon completion or
termination of the Work, Consultant shall be responsible for removing and properly
disposing of all hazardous substances from the job site in connection with
Consultant’s activities. Consultant shall also be responsible for cleanup and
disposal of spilled and contaminated materials. “Hazardous substance” shall mean
any hazardous, toxic, infectious or radioactive substance, waste and material as
defined by any applicable law or order.
25. Confidentiality
A. Definition of “Confidential Information”
As used in the Agreement, the term “Confidential Information” means:
1) proprietary information of IOU; 2) information marked or designated by
IOU as confidential; 3) information, whether or not in written form and
whether or not designated as confidential, that is known by Consultant to be
treated by IOU as confidential; 4) information provided to IOU by third
15
parties that IOU is obligated to keep confidential; and 5) information
developed by Consultant in connection with performance of the Agreement.
B. Exclusions
Confidential Information shall not include: 1) information that is publicly
available at the time of disclosure by IOU to Consultant or its
Representatives (as defined below); 2) information that becomes publicly
available other than through actions of Consultant or any of its
Representatives (as defined below) in violation of the Agreement; 3)
information already known to Consultant as documented by written records
that predate the Agreement; or 4) information rightfully obtained from third
parties and not subject to any obligation of confidentiality.
C. Nondisclosure
Consultant agrees that it will not disclose Confidential Information to any third
party, directly or indirectly, during the term of the Agreement or any time
thereafter, under any circumstances or by any means, without IOU’s prior
written consent. Any question regarding use of information or its confidential
nature should be directed to the IOU Contract Administrator or the IOU
buyer identified in the Agreement.
SAMPLE
D. Nonuse
Consultant further agrees that it will not use Confidential Information except
as may be necessary to perform the Work required in the Agreement.
E. Protection
Notwithstanding anything contained in the Agreement to the contrary,
Consultant may disclose Confidential Information to its employees, representatives and other
agents (“Representatives”), but only on a “need to
know” basis and only after notifying such Representatives of the confidential
nature of the information, the terms of this Section 24, and that such terms
apply to them. Consultant and its affiliates and their respective employees,
agents, representatives and subcontractors agree to take all reasonable
precautions to protect the confidentiality of Confidential Information and, upon
request by IOU, to return to IOU any documents that contain or reflect
Confidential Information. Any unpermitted disclosure by any Representative
of Consultant shall be deemed made by Consultant.
F. Injunctive Relief
Consultant acknowledges that a breach of any obligation under this Section
24 will result in irreparable injury to the business of IOU and that its remedy
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at law for such a breach will be inadequate. Accordingly, Consultant agrees
that, in addition to other remedies available at law and in equity, IOU will be
entitled to both preliminary and permanent injunctions to prevent and/or halt a
breach or threatened breach of any obligation under this Section 24.
G. Disclosure for Tax Purposes
Notwithstanding anything to the contrary contained in the Agreement, or any
other express or implied agreement, arrangement or understanding, the
parties and their respective affiliates and Representatives may disclose to
any and all persons the tax structure and any of the tax aspects of the
transaction(s) contemplated by the Agreement that are necessary to describe
or support any United States federal income tax benefits that may result
therefrom or any materials relating thereto, except where confidentiality is
reasonably necessary to comply with United States federal or state securities
laws. For the purposes of this provision, "tax structure" is limited to facts
relevant to the U.S. federal income tax treatment of the transaction(s) and
does not include information relating to the identity of the parties, their
affiliates, agents, or advisors.
SAMPLE
H. Compelled Disclosure
If Consultant becomes legally compelled (by deposition, interrogatory,
request for documents, subpoena, civil investigative demand or similar
process, or applicable law or regulation) to disclose any Confidential
Information, Consultant shall give IOU prompt written notice of the
requirement before releasing the information so that IOU may seek a
protective order or other appropriate remedy and/or waive compliance with
the terms of the Agreement. Consultant shall cooperate with IOU to obtain a
protective order. If a protective order or other remedy is not obtained, or IOU
waives compliance with the terms of this Section 24, Consultant shall provide
only that limited portion of the Confidential Information that is legally required and shall
exercise best efforts to obtain assurance that confidential treatment
will be accorded the information. Upon request of IOU, Consultant shall
provide an opinion of counsel to IOU to the effect that Consultant is legally
compelled to disclose the information.
26. Warranties
In addition to its obligations under Section 7, Consultant warrants that the Work
performed under the Agreement shall be free from defects in design, material,
workmanship and title, shall conform in all respects to the terms of the
Agreement, and shall be suitable for the use intended. Consultant further
warrants that materials supplied pursuant to the Agreement shall be new, shall
be of the quality specified or of the best grade if no quality is specified and shall
conform to the work specified, and other descriptions set forth in the Agreement.
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These warranties shall remain in effect for the period specified or for a period of
one (1) year following acceptance or initial operation, whichever is later. In the
event of nonconformity of these warranties, Consultant shall, upon notice from
IOU of the breach, promptly repair or replace the nonconforming item or
otherwise remedy the nonconformity at Consultant’s sole cost. Consultant
warrants that any repairs or replaced material will meet the warranty
requirements of this Section 26 for a period of one (1) year following IOU’s
acceptance of the repair or replacement, or until the expiration of the original
warranty period, whichever is later. Consultant’s liability shall extend to all
damages caused by the nonconformity of these warranties or by Consultant’s
efforts to correct defects. Nothing in this Section 26 shall relieve Consultant of
its obligations to correct latent defects that become apparent only after expiration
of the warranty period, and any corrections of the latent defects will extend the
warranty requirements of this Section 26 for a period of one (1) year following
IOU’s acceptance of the corrections.
27. Conflicts, Errors, Omissions, or Discrepancies
Consultant shall advise IOU in writing of all conflicts, errors, omissions, or
discrepancies in or among the various documents comprising the Agreement
immediately upon discovery and prior to Consultant's performing the affected Work.
IOU shall promptly resolve the conflicts and IOU’s resolution shall be final.
SAMPLE
28. Severability
Any provisions of the Agreement prohibited or rendered unenforceable by any law
shall be ineffective only to the extent of the prohibition or unenforceability without
invalidating the remaining provisions of the Agreement.
29. Attorney Fees
In the event of any legal action to enforce any of the terms of the Agreement, the
prevailing party shall be entitled to its reasonable attorney fees, including attorney
fees at trial and on appeal.
30. Examination of Work
IOU and its representatives shall have the right to inspect the Work and witness
tests or perform audits of Consultant at any time. The making or failure to make any
inspection of, payment for, or acceptance of the Work shall in no way impair IOU’s
right to reject nonconforming Work or to avail itself of any other remedies to which
IOU may be entitled, notwithstanding IOU’s knowledge of the nonconformity, its
substantiality, or the ease of its discovery.
31. Time for Performance
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The timely performance of the Work and of Consultant's obligations under the
Agreement are material terms of the Agreement.
32. Force Majeure
Neither party shall be liable for delays due to an unforeseeable cause beyond the
control and without the fault or negligence of the party incurring the delay, including,
to the extent it satisfies the above description, any fire, unusual weather conditions,
riot, act of God, act of the public enemy, or other similar event. However, both
parties agree to seek to mitigate the potential impact of any such delay. The party
incurring the delay shall within five (5) calendar days from the beginning of the
delay, notify the other party in writing of the causes of the delay and its probable
extent. The notification of delay shall not be the basis for a request for additional
compensation. In the event of any such delay, the required completion date may be
extended by a reasonable period not exceeding the time actually lost by reason of
the delay.
33. Disputes
SAMPLE
Except as otherwise provided in the Agreement, IOU shall decide any dispute
arising under the Agreement that is not disposed of by agreement, and shall mail or
otherwise furnish its written decision to Consultant. IOU’s decision shall be final
unless Consultant, within thirty (30) days after notice of IOU’s decision, files with
IOU a written protest, stating clearly and in detail the basis for Consultant’s protest.
Consultant shall continue its performance under the Agreement pending the
resolution of any dispute. Following this process, the parties are free to pursue their
respective remedies at law and equity.
34. Authorized Representative
Before starting the Work, Consultant shall designate a qualified individual to
represent Consultant, and shall inform IOU in writing of the name and address of
the representative together with a clear definition of the scope of his/her authority to
represent Consultant, and shall specify any limitations on the authority. All
communications made to the authorized representative shall be binding upon
Consultant.
35. No Third Party Beneficiaries
This Agreement is intended solely for the benefit of the parties hereto. Except as
expressly set forth in the Agreement, nothing in the Agreement shall be construed to
create any liability to or any benefit for any person not a party to the Agreement.
36. Successors and Assigns
This Agreement shall be binding on the parties’ successors, and insofar as
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assignable, on the parties’ assignees.
37. Effective Date
This Agreement shall be effective on the date it has been signed by both of the
Parties as indicated on the signature page hereto.
38. Counterparts
This Agreement may be executed in any number of counterparts, which together will
constitute one instrument.
IN WITNESS WHEREOF, the parties, through their duly authorized representatives,
have executed the Agreement as of the dates indicated below.
Consultant:
SAMPLE
IOU:
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Exhibit A
Consultant Expense Reimbursement Guidelines
• Only expenses that are incurred directly related to providing IOU with services shall be
reimbursable; time spent traveling is not reimbursable.
• IOU (“Company”) will only reimburse for actual approved expenses.
• Company does not pay per diem.
• Company requires all reimbursements to be justified with a Statement of Work (SOW) and/or
appropriate documentation.
• All invoices for expenses must include supporting documentation, which is legible and clearly
itemized.
• All expenses must be pre-approved, in writing, by the Consultant’s Direct Supervisor or be
defined in a specific SOW.
SAMPLE
• Company will process expense invoices in accordance with Consultant’s agreement with
Company.
• Company does not reimburse or allow payment of handling fees associated with travel.
• All expense invoices must be mailed or sent electronically to:
AUTHORIZED EXPENSES
Lodging: When on approved business for Company, single room rates, taxes, surcharges for
telephone usage. Double occupancy is not authorized.
Materials and Supplies: When Consultant is authorized to make periodic minor expenditures
(less than $75.00) of miscellaneous items needed in the performance of duties for Company.
Meals: When away from Consultant work locations on Company business only. The current
GSA Meals and Incidental Expenses Breakdown is used as a guideline for expense
reimbursement. If a Company employee is present, the Company employee, not Consultant,
must pay for the meal. If Consultant pays for other people’s meal, Consultant must document
the names of all people present and the purpose of the meal. The original, itemized receipt from
the establishment (not the credit card receipt), must support meal charges. Excessive tips will
be denied.
Parking: When using authorized rental car or personal automobile while consulting for
Company, including airport parking while away from home.
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Tips: Reasonable tips to doormen, porters, housekeeper, etc. when on travel status. (This is
not a catch-all category.)
Transportation:
Air – Domestic: Economy or coach class air travel is standard for all business travel within the
USA, or to and from Mexico and Canada. Consultant must take the lowest airfare available for
flights that are within a reasonable amount of time before or after Consultant’s preferred
departure time, so long as the schedule meets the Company’s business need.
Ground: Travel by the most economical means available, considering distance, appointment
schedules, and time away from home work location. Limousine use is prohibited.
Personal Vehicle: When conducting Company business, allowable mileage rates in accordance
with the most current Internal Revenue Service guidelines.
Car Rental: When authorized in connection with business travel.
SAMPLE
• Refueling: Consultant must refuel rental car before returning it to Rental Agency. Company
will not pay for fuel purchased from Rental Car Agency
UNAUTHORIZED EXPENSES
Alcohol/Liquor: Not permitted.
Business Entertainment: Not permitted. All business entertainment must be paid by a Company
employee. See exception under Meals, above.
Cash Drafts: Not permitted.
Club Memberships: Not permitted.
Commuting: Not permitted
Personal Entertainment: Not permitted.
Flight Insurance: Not permitted.
Gym Fees: Not permitted.
Hotel Cancellation Fees: Not permitted, unless there are extenuating business reasons.
Laundry & Valet Service: Only after five (5) days of travel, not to exceed $40.00 each
succeeding week.
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Membership Dues: Not permitted
Personal Items and Services: Not permitted. e.g., clothing, briefcases, umbrellas and
sundry shop items.
Custodial Care: Not permitted.
Spouse Travel: Not permitted.
Transportation Upgrade: Not permitted.
Traffic or Parking Citations: Not Permitted.
DOCUMENTATION REQUIREMENTS
Expenses, Pre-Approved: Email or other documents indicating Company manager approval.
SAMPLE
Car Rental: The customer copy of the rental agency contract, and itemized credit card receipt.
Lodging: Original hotel receipts, regardless of amount.
Transportation, Air: The cost of air transportation must be supported by either the original
passenger coupon (last copy of the airline ticket); or E-ticket receipt with attached boarding
pass. Trip itineraries will not be accepted as flight documentation.
Other: A best effort should be made to provide receipts for all reimbursable expenditures.
Legible, itemized receipts are required for all expenses. Expenses documented with hard-toread or cumulative receipts will be denied. If a receipt is lost, a notation must be made on the
expense report. Excess lost receipts may result in reimbursement refusal.
Exceptions: If an expenditure is an exception to Company policy, and a Company manager with
the authority to approve it recommends reimbursement, a statement justifying the approval
must be attached to the Consultant Expense Report before submitting for payment.
Additional Information: If you have any questions regarding this document please contact:
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