Section 3.0 – Scope of the Project
Section 3.1 (Task 1) – Project Management, Meetings, and Project Deliverables
Page 13 – Section 3.1.H – CDE Notification and Approval Schedule: For test materials (e.g., test books, manuals) that are created using InDesign or other composition software, it may not be possible to submit revised documents within three working days from receipt of the CDE feedback. Are proposed schedules that provide CDE with the specified number of days for review and that meet in-site dates acceptable and responsive?
CDE does not understand why “composition software” would not allow revision of materials within three working days. Section 3.1.H allows CDE to agree in writing CDE to modifications to the specified schedule, however, no assurance can be made that CDE will agree to such changes. CDE would have to consider the reasonableness of the request and consider any potential adverse impacts to CDE, the Program or the Schedule.
Section 3.3 (Task 3) – Test Development
Page 25 – Section 3.3.A.2 – Separating Kindergarten Tests: Will the CDE require new item types to be included in the reconfigured Kindergarten and Grades 1-2 test forms?
The kindergarten test must contain only items that are appropriate for that grade and reflect content covered under English Language Development Standards that are suitable for that grade.
Will the CDE separate the ELD standards for the K and Grades 1-2 prior to the grade span reconfiguration?
No; it is the responsibility of the bidder to provide a plan for separating the testing of kindergartners that addresses all the points outlined in 3.3.A.2.
Will the CDE provide to the vendor a list of potential participants for the standard-setting meeting? And will the vendor be expected to recruit the participants?
As to the first question: No, it is the vendor’s responsibility to recruit participants. As to the second question: yes, the vendor will be expected to recruit the participants. The RFP requires the bidder to “outline the methodology for the standard setting and recruitment of participants”, p. 25.
Section 3.6 (Task 6) – Test Security
Page 44 – Section 3.6.H – Secure Handling of Sensitive Writing: Contractor will provide this sensitive paper service to the CDE on the understanding that the Contractor will have no liability with respect to any claims which arise out of supplying these sensitive papers to the CDE. Is this the CDE’s understanding?
No. The sensitive papers are not to be delivered to the CDE. These papers are to be referred to the LEA per the RFP, p. 44. There are no provisions in the Agreement that would relieve Contractor from liability from claims.
Section 3.9 (Task 9) – Reporting of Test Results
Page 55 – Section 3.9.B.4 – Test Results Interpretation Guides: Will the CDE define which three languages they would like the bidder’s to plan and cost for the TRIG?
The three languages will be determined on an annual basis according to the three highest ranking languages on the statewide language census, an annual data collection administered in March. The 7th bullet on page 54 (3.9.B.2.a) provides a link to additional information about the statewide Language Census. For the 2010-11 school year, the first three languages were Spanish, Vietnamese and Cantonese; however these languages may change for the school years covered by the Agreement. Contractor must bid without knowing exactly which languages will be covered each school year. After the statewide language census results are posted each spring, Contractor will be able to access the statewide language census results for the preceding school year and determine the three languages covered by the Agreement via the DataQuest Web site. The latest data as of October 2011 are from the 2010-11 school year. To access the list of languages, select “Level” (State), “Subject” (English Learners), “Year of Data”(as applicable), then “Select a Report” (Number of English Learners by Language); the list of languages in the state will be shown in descending order. Contractor must use the top 3 languages from the most recent statewide language census at the time of the translations.
Section 3.11 (Task 11) – English-Only Study
Page 63 – Section 3.11.B – Test Materials and Data Collection: The RFP states in Task 3.11 that vendors must collect “individual student identification data to allow for comparisons of yearly gains.” Because there would not be historical data for the English-Only students, is it correct to assume that at least two administrations are required to complete this study?
No. Only one administration will be necessary for the study. The purpose for requiring comparison of yearly gains is to ensure that the students are assigned to the correct study group (EO or EL). For example, a grade one student who met the CELDT criterion in kindergarten could be removed from the EO study group. Another example would be to identify kindergarten students who are repeating kindergarten. Therefore, they may have taken the CELDT before.
Page 64 – Section 3.11.C – Data Analysis: What is the purpose of the Stepwise Discriminant Function Analysis?
The purpose is to identify the degree that each domain discriminates between the two groups being compared.
Section 5.0 – Proposal Specifications
Page 71-72 – Section 5.1 – General Requirements and Page 76 – Section 5.4.A – Cover Letter : These paragraphs state that Contractor’s proposal shall become public record. In the event that Contractor includes confidential, trade secret samples testing material with its proposal, can the Contractor mark such samples to indicate confidentiality and request return of the samples after evaluation so as to maintain security of the samples? Will the CDE permit the bidder the ability to redact such confidential and trade secret sample test materials from its proposal prior to the CDE making the proposal available to the public?
Section 10344 of the Public Contracts Code states, “All proposals and all evaluation and scoring sheets shall be made available for public inspection at the conclusion of the committee scoring process.” The bidder would not be allowed to redact or remove any documents from the proposal once the proposal has been evaluated.
Section 7.0 – Contract Terms and Requirements
Page 90 – Section 7.4 – Contract Requirements Related to DVBE Participation Goals and Page 91 – Section 7.8 – Retention of Records: These paragraphs require Contractor’s financial and business records to be subject to audit the disclosure of which could result in substantial harm to Contractor’s competitive position. Will the CDE maintain the confidentiality of these records and will CDE cooperate with the Contractor to allow the Contractor to request that any confidential financial records obtained in a proceeding brought by CDE will be kept confidential?
CDE will maintain the confidentiality of personally identifiable information obtained in its audits, but financial and business information related to a contract paid with public funds may be subject to disclosure. To the extent feasible, CDE is willing to consider Contractor requests to reduce and/or mitigate any potential harm caused by an audit, although no assurances can be made that any protection can be provided.
Section 7.12 – Data Management (DM) Requirements
Page 94 – Compliance with Statutory and Contractual Requirements – Indemnity: With respect to COPPA and FERPA regulations, it is our understanding that in the event that parental consent is required for Contractor’s use of Confidential Information of CDE students under the Contract, it shall be the responsibility of the CDE or its schools to obtain such parental consent. Is this the CDE’s understanding as well?
The purpose of these provisions is to ensure that the Contractor does not use or disclose student information in violation of these various legal provisions. Nothing in the contract obligates the Contractor, the CDE or the schools to obtain parental consent, and Bidder’s should not assume parental consent will be required. If no such consent is obtained, Contractor will still be bound to use and disclose such information that it receives only as allowed by these provisions. In the event that consent is obtained by CDE or the schools in order to make a disclosure of such information to the Contractor, the Contractor is still bound to use and disclose such information in compliance with such laws. Prospective Bidder’s should consult with their own attorneys to determine what obligations the law would place on them to comply with such provisions.
Section 7.25 – Right To Terminate
Page 100 – Section 7.25 – Right to Terminate: These paragraphs allow the CDE to terminate the Contract when Contractor has failed to perform. Does the CDE agree that Contractor will not be in default if its failure to perform is caused by force majeure meaning circumstances and events beyond Contractor’s reasonable control, including acts of God, acts of war, acts of terrorism, actions or decrees of governmental bodies, epidemics, power failures, earthquakes, unusually severe weather, or other disasters or events, including acts or failures to act on the part of the CDE (such as failure to review and sign-off on submitted materials in a timely manner) and in any such force event, the Contractor’s time to perform shall be extended for a reasonable period of time agreed to and determined by the CDE.
The third paragraph of the Right to Terminate provision (section 7.25) is a type of force majeure provision because it allows suspension or termination if premises or equipment are destroyed by catastrophe such that it is impractical to continue service. However, CDE will issue an erratum replacing such paragraph with the following, more typical provision, to provide additional clarity as to the application of force majeure to the Agreement:
Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the Contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include, but are not limited to:
a) Acts of God or of the public enemy, and
b) Acts of the federal or State government in either its sovereign or contractual capacity.
If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform.”
Section 8.0 – General Terms and Conditions
Page 99 – Section 8.0 – General Terms and Conditions: It is our understanding that the Contractor shall not be liable for indemnifying the CDE against any intellectual property violations or claims arising from other materials provided by CDE (or any of CDE’s prior or other vendors) to the Contractor for use by Contractor under this Contract. Is this the CDE’s understanding?
As a generalization dependent on many assumptions, CDE agrees with the basic principle. The General Terms and Conditions, Article 5, states that the “Contractor will agree to indemnify, defend and save harmless the State, its officers, agents and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, suppliers, laborers, and any other person, firm or corporation of this Agreement, and from any and all claims and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by Contractor in the performance of this Agreement.” To provide additional clarity around claims of intellectual property infringement, CDE will add the following standard DGS IP indemnity provisions through an erratum, which makes it clear that the indemnity only applies to “products and services provided” under the contract, and not material supplied by CDE:
PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY: a) Contractor will indemnify, defend, and save harmless the State, its officers, agents, and employees, from any and all third party claims, costs (including without limitation reasonable attorneys’ fees), and losses for infringement or violation of any U.S. Intellectual Property Right by any product or service provided hereunder. With respect to claims arising from computer Hardware or Software manufactured by a third party and sold by Contractor as a reseller, Contractor will pass through to the State such indemnity rights as it receives from such third party (“Third Party Obligation”) and will cooperate in enforcing them; provided that if the third party manufacturer fails to honor the Third Party Obligation, Contractor will provide the State with indemnity protection equal to that called for by the Third Party Obligation, but in no event greater than that called for in the first sentence of this Section 39a). The provisions of the preceding sentence apply only to third party computer Hardware or Software sold as a distinct unit and accepted by the State. Unless a Third Party Obligation provides otherwise, the defense and payment obligations set forth in this Section 39a) will be conditional upon the following:
The State will notify Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (i) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys’ fees and costs (but not liability); (ii) the State will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (iii) the State will reasonably cooperate in the defense and in any related settlement negotiations.
b) The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon:
(i) The combination or utilization of Deliverables furnished hereunder with Equipment or devices not made or furnished by the Contractor; or,
(ii) The operation of Equipment furnished by the Contractor under the control of any Operating Software other than, or in addition to, the current version of Contractor-supplied Operating Software; or
(iii) The modification by the State of the Equipment furnished hereunder or of the Software; or
(iv) The combination or utilization of Software furnished hereunder with non-contractor supplied Software.