Group No: 79037 Solicitation No: 1517 Class Code: 80 & 84 Request for Proposals (RFP) are being solicited by the New York State Office of General Services For Lease Audit Services PROPOSAL DUE DATE: March 24, 2009 Issue Date: February 17, 2009 Designated Contact: Alternate Contact: Robert A. Neiles Bill A. Macey Voice: 518-474-5981 Same Fax: 518-473-2844 Same E-mail: Robert.Neiles@ogs.state.ny.us Bill.Macey@ogs.state.ny.us
New York State Office of General Services Lease Audit Services Solicitation Number 1517 Table of Contents 1. INTRODUCTION... 4 1.1 Overview... 4 1.2 Designated Contact... 4 1.3 Minimum Bidder Qualifications... 4 1.4 Key Events... 4 2. PROPOSAL SUBMISSION... 6 2.1 Intent to Submit a Proposal... 6 2.2 RFP Questions and Clarifications... 6 2.3 Proposal Format and Content...6 2.4 Instructions for Bid Submission... 8 2.4.1 Packaging of RFP Response... 8 3. ADMINISTRATIVE INFORMATION... 10 3.1 Issuing Office... 10 3.2 Method of Award... 10 3.3 Term of Contract... 10 3.4 Price... 10 3.5 Method of Payment... 10 3.6 Electronic Payment... 11 3.7 Past Practice... 11 3.8 Proposal Exceptions... 11 3.9 Dispute Resolution... 11 3.10 Examination of Contract Documents... 12 3.11 Prime Contractor Responsibilities... 12 3.12 Glossary of Terms... 12 3.13 Rules of Construction... 12 4. EVALUATION AND SELECTION PROCESS... 14 4.1 Proposal Evaluation... 14 4.2 Notification of Award... 14 5. SCOPE OF WORK... 15 5.1 Operations Standards... 15 5.2 Scope... 15 5.3 Scheduling of Work... 15 5.4 Assumptions and Parameters... 16 5.5 Staffing Expectations... 16 5.6 Security Procedures... 16 5.7 Reporting Requirements... 16 5.8 Acceptance of Work... 17 2
New York State Office of General Services Lease Audit Services Solicitation Number 1517 6. CONTRACT CLAUSES AND REQUIREMENTS... 18 6.1 Appendix A / Order of Precedence... 18 6.2 Procurement Lobbying Requirement (see Appendix B)... 18 6.3 Contractor Insurance Requirements... 18 6.4 Tax and Finance Clause (see Appendix B)... 21 6.5 Participation Opportunities for New York State Certified Minorities and Women-Owned Businesses (see Appendix C)... 22 6.6 Freedom of Information Law / Trade Secrets... 22 6.7 Consultant Contractor Requirements (see Appendix B)... 22 6.8 Security/Confidentiality (see Appendix B)... 24 6.9 General Requirements... 24 6.10 Contract Terms... 25 6.11 Subcontractors... 25 6.12 Procurement Rights... 26 6.13 Extent of Services... 26 6.14 Debriefings... 26 6.15 Termination... 27 6.16 NYS Standard Vendor Responsibility Questionnaire (see Appendix B)... 27 6.17 Ethics Compliance... 27 6.18 Extension of Use... 27 Appendix A..Standard Clauses for New York State Contracts Appendix B..Required Forms Appendix C..Minority/Woman Owned Business Opportunities Attachment 1 Cost Proposal Form Exhibit A Spreadsheet Lease listing 3
New York State Office of General Services Lease Audit Services Solicitation Number 1517 1. Introduction 1.1 Overview This document is a Request for Proposals (RFP) for the auditing of property leases for the State of New York (State). The Office of General Services (OGS) Bureau of Internal Audit Services is seeking qualified vendor(s) to conduct audits of leases negotiated by OGS and / or held by State Agencies in New York City (NYC) and other various locations within the State of New York. OGS will make separate awards for lease audit services with the five boroughs of NYC, and all other New York State locations. The efforts of the successful bidder will supplement the lease auditing currently being performed by OGS. 1.2 Designated Contact In compliance with the Procurement Lobbying Law, Robert A. Neiles, Purchasing Agent, NYS Office of General Services, Division of Financial Administration has been designated the ONLY contact for this procurement solicitation and may be reached by email, voice or fax for all inquiries regarding this solicitation. Robert A. Neiles, Purchasing Agent NYS Office of General Services Financial Administration Corning Tower, 40th Floor, ESP Albany, New York 12242 Voice: 1-518-474-5981 Fax: 1-518-473-2844 Email: robert.neiles@ogs.state.ny.us In the event the designated contact is not available, the alternate designated contact is: Bill A. Macey, Team Leader NYS Office of General Services Financial Administration Corning Tower, 40th Floor, ESP Albany, New York 12242 Voice: 1-518-474-5981 Fax: 1-518-473-2844 Email: bill.macey@ogs.state.ny.us 1.3 Minimum Bidder Qualifications The following minimum qualifications must be met by each proposing company/firm: All proposers, the firm as well as the identified supervisor, must have experience conducting lease audits. If submitting a proposal for the NYC region, this experience must include conducting lease audits of NYC properties. 1.4 Key Events The Table below outlines the tentative schedule for important action dates. 4
New York State Office of General Services Lease Audit Services Solicitation Number 1517 Key Events (Estimated) Action Date OGS issues Request for Proposal (RFP) for Lease Audit Services February 17, 2009 Proposers submit Intent to Submit a Proposal Notification to OGS March 3, 2009 Proposer questions due to OGS March 3, 2009 OGS issues responses to questions (estimated) March 10, 2009 Proposals due to OGS @ 3 PM EST March 24, 2009 Contract start date (estimated) May 18, 2009 5
New York State Office of General Services Lease Audit Services Solicitation Number 1517 2. Proposal Submission 2.1 Intent to Submit a Proposal Vendors who wish to submit a proposal must register their Intent to Submit a Proposal with OGS by the date stated in Section 1.4 Key Events by sending written notice to Robert A. Neiles, via e-mail at robert.neiles@ogs.state.ny.us. Vendors shall include their company name, address, phone, fax, contact name, title, and email address. Only vendors who have submitted Intent to Submit a Proposal will be allowed to submit proposals and receive updates and responses to questions regarding this RFP. By issuing Intent to Submit a Proposal, the vendor is not obligated to submit a proposal. 2.2 RFP Questions and Clarifications Questions and requests for clarification regarding this RFP shall only be directed to: Robert A. Neiles, Purchasing Agent OGS Division of Financial Administration 40th Floor, Corning Tower, ESP Albany, NY 12242 Phone: 1-518-474-5981 Fax: 1-518-473-2844 e-mail: robert.neiles@ogs.state.ny.us Questions and requests for clarification are only accepted via e-mail. Deadline for submission of questions will be as stated in Section 1.4 Key Events. Official answers to questions will be provided via addendum per the date shown in Section 1.4 Key Events, by the Issuing Office and distributed via e-mail to all interested Proposers who have submitted a timely letter of Intent to Submit a Proposal. 2.3 Proposal Format and Content In order for the State to evaluate proposals fairly and completely, proposers should follow the format set forth herein and must provide all of the information requested. All items identified in the following list must be addressed as concisely as possible in order for a proposal to be considered complete. Failure to conform to the stated requirements may necessitate rejection of the proposal. 1. Cover Letter. The cover letter must confirm that the proposer will comply with all the provisions of this RFP and that, should the contract be awarded to your company, you would be prepared to begin audit services upon contract approval by the Office of the State Comptroller. (See Section 3.3 Term of Contract). a. The cover letter must include the full contact information of the person(s) NYS OGS shall contact regarding the proposal. A proposer representative authorized to make contractual obligations must sign the cover letter. The letter must also state whether or not subcontractors will be used (See Section 6.11 - Subcontractors). b. The cover letter must confirm understanding of Method of Payment (Section 3.5) and that the proposer has the capability to fully operate its business, including the payment of salaries without compensation from the State until audit findings are accepted and the State receives reimbursement and can then effectuate the payment process. c. The cover letter must indicate if the proposal is for NYC, all other NYS, or both. 2. Proposer s Qualifications and Prior Experience. Proposers must describe their capabilities to provide the services requested in this RFP by providing the following: 6
New York State Office of General Services Lease Audit Services Solicitation Number 1517 a. A description of Proposer s experience in lease auditing services. Include the number of years the Proposer has been in business, the number of leases audited each year, the scope of relevant audits, and experience with audits of office properties leased in New York City (if applicable). Also, evidence of the financial wherewithal/capability to perform the desired audits for the state under this contract under the payment structure of this RFP. b. An organizational chart and staffing plan for this contract which identifies the Supervisor and their responsibilities, job qualifications and years experience in lease audit services. In addition to this staffing plan, submit the following: Resumes of key personnel who would be assigned to the contract. A description of any subcontractors and how these subcontracted services relate to this proposed contract (See Section 6.11 - Subcontractors Clause). A description of how staff auditors will be selected prepared and / or trained to work on Lease Audits. Note that proposers are not obligated to identify and include resumes of staff auditors; however they may do so at their option. 3. References. A list five (5) references that are able to demonstrate the successful completion of base year field lease audits, three (3) of which must have been for leases for office space in New York City. The references must include audits of operating costs and tax escalation. At least three of the references must be for lease audits conducted by the proposed supervisor and the remaining two references can be for the firm alone or a combination of both the firm and the supervisor. If Proposers bid only on the audits outside of NYC the references provided do not have to be for NYC lease audits. The Proposer is responsible for ensuring that references can be reached for verification. 4. Operational Plan. Describe your plan for providing the services required by this RFP. At a minimum, this section must include a description of how the Proposer will staff and perform these audits to assess whether Landlord billings are in compliance with the terms of OGS leases, and a description of how cost recoveries will be identified from billings that are not in lease compliance. 5. Pricing. Proposer shall list on the attached cost proposal form (Attachment 1), its fixed percentage of each of the following three (3) types of audits; tax escalation, operating costs and other cost savings recovered and approved by OGS, as well as an hourly rate for consulting services. Said percentage and rate shall include contractors travel, insurance, overhead, profit, and any and all ancillary expenses. The pricing portion of your proposal must be submitted in a separate sealed envelope within the total bid package submitted to OGS. 6. Include any other documentation indicating the expertise that the Proposer believes would enhance their proposal. 7. All other required completed Exhibits, Appendixes and Attachments. 7
New York State Office of General Services Lease Audit Services Solicitation Number 1517 2.4 Instructions for Bid Submission Only those Proposers who furnish all required information and meet the mandatory pre-proposal requirements will be considered for evaluation. Submit all required proposal contents, including attachments, exhibits, supporting documents, and proposal addenda if any, by sending or delivering all to the OGS Division of Financial Administration at the following address: Division of Financial Administration NYS Office of General Services Corning Tower, 40th Floor Empire State Plaza Albany, NY 12242 Attn: Robert A. Neiles OGS requires written proposals from qualified entities interested in providing these services. E-mail or fax proposal submissions are not acceptable and will not be considered. The State of New York will not be held liable for any cost incurred by the Proposer for work performed in the preparation and production of a proposal or for any work performed prior to the formal execution of a contract. Proposals must be received in the above office on or before 3:00 PM EST on March 24, 2009. The received time of proposals will be determined by OGS at the clock at the above noted location. Proposals must remain open and valid for 120 days from the due date, unless the time for awarding the contract is extended by mutual consent of NYS OGS and the Proposer. A proposal shall continue to remain an effective offer, firm and irrevocable, subsequent to such 120 day period until either tentative award of the contract(s) by issuing Office is made or withdrawal of the proposal in writing by Proposer. Tentative award of the contract(s) shall consist of written notice to that effect by the issuing Office to the successful Proposer(s), who shall thereupon be obligated to execute a formal contract for lease audit services. This RFP remains the property of the State at all times, and all responses to this RFP, once delivered, become the property of the State. NO CONSIDERATION WILL BE GIVEN TO PROPOSALS RECEIVED AFTER THE STATED DATE AND TIME. 2.4.1 Packaging of RFP Response 1. OGS requires four original and four exact copies of the proposal, as well as four original Attachment 1 Cost proposals to be submitted. The Attachment 1 Cost Proposals must be submitted in a separately sealed envelope, clearly marked Cost Proposal, and included within the proposal package. The proposal documents must be submitted by mail, hand delivery, overnight carrier or certified mail in a package showing the following information on the outside: Proposer's complete name and address Solicitation Number 1517 Proposal Due Date and Time: Mach 24, 2009 @ 3:00 PM EDT Proposal for Lease Audit Services 8
New York State Office of General Services Lease Audit Services Solicitation Number 1517 Mailed Bids Proposers mailing their proposal must allow sufficient mail delivery time to ensure receipt of their proposal no later than the specified date and time. Important Security Procedures for Delivered Bids Security procedures are in effect at the Corning Tower. Photo identification is required. All visitors must register for building access, for delivering bids. Vendors are encouraged to pre-register by contacting the OGS Finance Office at 518-474-5981 at least 24 hours prior to the bid opening. Pre-registered visitors are to report to the visitor desk located at the Concourse level of the Corning Tower. Upon presentation of appropriate photo identification, the visitor will be allowed access to the building. Upon arrival at the visitor desk, visitors that have not pre-registered will be directed to a designated phone to call the OGS Finance Office. The Finance Office will then enter the visitor s information into the security system. Access will not be allowed until the security system has been updated. Visitors are encouraged to pre-register to ensure timely access to the building. Vendors who intend to deliver bids or conduct business with OGS should allow extra time to comply with the security procedures. These security procedures may change or be modified at any time. Visitor parking information can be viewed by viewing the following OGS web site: http://www.ogs.state.ny.us/parking/forvisitor/visitor.html 9
New York State Office of General Services Lease Audit Services Solicitation Number 1517 3. Administrative Information 3.1 Issuing Office This RFP is being released by the New York State Office of General Services Division of Financial Administration on behalf of The Bureau of Internal Audit. 3.2 Method of Award This will be a multiple award, best value procurement. Separate awards will be made for 1) the NYC region, and 2) All other NYS locations. In the event that the same proposer is awarded both regions, a single contract will be executed. The Proposer(s) affording OGS the best value, as evidenced by achieving the highest total score using the evaluation criteria listed in section 4, will be considered the successful bidder and may be requested to enter into contract for the services outlined in this RFP. (See Section 4 Evaluation & Selection Process) 3.3 Term of Contract The service contract will commence upon OSC approval, and will be in effect for five (5) years. The Contractor is to submit a percentage of costs recovered that will be fixed for the five (5) year term. 3.4 Price Price shall be represented as a percentage of the total savings realized and/or reimbursed to the State based upon contractor s audit of the lease. Contractors will not be paid for projected savings for future lease costs that will be billed for the remainder of the lease term. Proposers are required to submit a percentage of savings realized and/or reimbursed to the State for each of the three lease audit findings: tax escalation, operating costs, and other cost savings using Attachment 1 Cost Proposal as the fees for the lease audit services. Percentages quoted must be inclusive of all costs including travel, licenses, insurance, administrative, profit and other ancillary costs and be fixed for the five (5) year term. Proposers may bid separate rates for audits in NYC, and all other NYS locations. Note that proposers must bid a single fixed percentage for each audit type sliding scales or ranges are not acceptable and will result in rejection of proposal. Additionally, an hourly rate for consulting services must be included on the Cost Proposal Attachment. This hourly rate shall be inclusive of all costs including travel, licenses, insurance, administrative, profit and other ancillary costs. This hourly rate shall be fixed for the contract term. 3.5 Method of Payment For the purposes of this contract, payments will be issued on a per audit basis, as a percentage of the savings actually realized by reimbursement of payments by a Landlord or through agreement by the Landlord of a credit to be applied against a currently due lease payment. Contractor may not invoice for services until after Contractor, Landlord and the State reach a settlement of the audit findings or the State has made a determination to withhold funds based upon the audit. Upon acceptance, the Contractor may issue an invoice to the Claims Unit for payment. Invoices will be processed in accordance with established procedures of the Office of General Services and the Office of the State Comptroller (OSC) and payments will be subject to the prompt payment provisions of Article XI- A of the New York State Finance Law. Consulting hours invoiced must be detailed to include date of service, number of hours and consultant name. 10
New York State Office of General Services Lease Audit Services Solicitation Number 1517 Each invoice must contain the Contract ID number (i.e.: C00XXXX), an itemized list of the services performed such as type of audit, date of service, lease number, location of lease, savings realized and the percentage of costs recovered applied to the realized savings. Invoices without the above stated information will be returned to Contractor to be completed as required in the paragraph above. Payment will not be issued until a corrected invoice is received and approved by OGS. All invoices must be submitted for payment to either: THE CLAIMS UNIT DIVISION OF FINANCIAL ADMINISTRATION -or- claimsunit@ogs.state.ny.us OFFICE OF GENERAL SERVICES EMPIRE STATE PLAZA STATION P. O. BOX 2117 ALBANY, NEW YORK 12220-0117 Also, a copy of the invoice, audit report and backup documentation (See Section 5.5 Reporting Requirements) must be forwarded to the Director, OGS Bureau of Internal Audit Services, 29 th Floor, Corning Tower, Empire State Plaza, Albany, New York. 3.6 Electronic Payment The Office of the State Comptroller (OSC) offers an electronic payment option in lieu of issuing checks. Contact OSC to obtain an information packet at 1-518-474-4032 or e-mail to epunit@osc.state.ny.us or visit their website at www.osc.state.ny.us. 3.7 Past Practice The failure to exercise any right hereunder in the past shall not operate as a waiver of such right. No breach of this Agreement shall be deemed waived unless such waiver shall be in writing and signed by the party claimed to have waived. No waiver of any breach of the Agreement at any time in the past shall constitute a waiver of subsequent breach. 3.8 Proposal Exceptions The Issuing Office will consider all requests to waive any proposal requirement. However, proposers should be aware that failure to obtain a waiver of any proposal requirement in advance of proposal submission could result in rejection of Bidder s proposal and disqualification from the bidding process. Bidders wishing to obtain an exemption or waiver for any part of this solicitation must contact the Issuing Office in writing by the Questions Due Date as identified in Key Events (Section 1.4). The request must cite the specific section and requirement in question, and clearly identify any proposed alternative. Requests will be considered and responded to in writing, either with the Answers to Questions as identified in Key Events (if the response results in a change to the RFP), or directly to the requesting vendor. 3.9 Dispute Resolution It is the policy of the Office of General Services Financial Administration to provide vendors with an opportunity to administratively resolve disputes, complaints or inquiries related to proposal solicitations or contract awards. OGS Financial Administration encourages vendors to seek resolution of disputes through consultation with OGS Financial Administration staff. All such matters will be accorded impartial and timely consideration. Interested parties may also file formal written disputes. A copy of the OGS Financial Administration Dispute Resolution Procedures for Vendors may be obtained by contacting the designated contact person identified on the front of the bid document. 11
New York State Office of General Services Lease Audit Services Solicitation Number 1517 3.10 Examination of Contract Documents 1. Each Proposer is under an affirmative duty to inform itself by personal examination of the specifications of the proposed work and by such other means as it may select, of the character, quality and extent of the work to be performed and the conditions under which the contract is to be executed. 2. Each Proposer shall examine specifications and all other data or instruction pertaining to the work. No pleas of ignorance of conditions that may be encountered or of any other matter concerning the work to be performed in the execution of the contract will be accepted by the state as an excuse for any failure or omission on the part of the Proposer to fulfill every detail of all the requirements of the documents governing the work. The Proposer, if awarded the contract, will not be allowed any extra compensation by reason of any matter or thing concerning which such Proposer might have fully informed itself prior to bidding. 3. Any addendum issued prior to the proposal due date must be acknowledged by signature, dated and be submitted on or before the proposal due date with four (4) originals. In awarding a contract any written addenda will become a part thereof. 4. Any verbal information obtained from, or statements made by, representatives of the Commissioner of General Services shall not be construed as in any way amending contract documents. Only such corrections or addenda as are issued, in writing, shall become a part of the contract. 3.11 Prime Contractor Responsibilities The State will contract only with the successful Bidder who is the Prime Contractor. The Issuing Office considers the Prime Contractor, the sole Contractor with regard to all provisions of the RFP, and the contract resulting from the RFP. No subcontract entered into by the Contractor shall relieve the Contractor of any liabilities or obligations in this RFP or the resultant contract. The Contractor accepts full responsibility for the actions of subcontractors who carry out any of the provisions of any contract resulting from this RFP. 3.12 Glossary of Terms Issuing Office shall mean the Office of General Services Department of Financial Administration. Contractor shall mean a successful company awarded a contract pursuant to this RFP. Request for Proposal or RFP shall mean this document. The State shall mean The People of the State of New York, which shall also mean the New York State office of General Services. Commissioner shall mean the Commissioner of General Services or duly authorized representative. Proposer, Offeror, or Bidder shall mean any person, partnership, firm, corporation or other authorized entity submitting a proposal to the State pursuant to this RFP. New York City, NYC shall mean any location within the following counties: Kings, Queens, Richmond, New York, and Bronx. All Other New York State, the Rest of the State shall mean any New York State location in any county other than those listed above. 3.13 Rules of Construction Words of the masculine and feminine genders shall be deemed and construed to include the neuter gender. Unless the context otherwise indicates, the singular number shall include the plural number and 12
New York State Office of General Services Lease Audit Services Solicitation Number 1517 vice versa, and words importing persons shall include corporations and associations, including public bodies, as well as natural persons. The terms hereby, hereof, hereto, herein, hereunder, and any similar terms, as used in this RFP, refer to this RFP. 13
New York State Office of General Services Lease Audit Services Solicitation Number 1517 4. Evaluation and Selection Process 4.1 Proposal Evaluation Proposals will be evaluated and scored separately by region (NYC / All Other NYS), based upon the criteria set forth in this Section. Proposals will be evaluated for best value to the State. The State may request that Proposers submitting responsive proposals provide oral presentations in Albany, NY, covering the major points of their proposals. The presentations will be given on a date, time and location to be designated by NYS OGS. If presentations are conducted, information provided will be considered in the technical scoring. A committee of OGS employees will evaluate each proposal and initially determine whether a proposal is responsive to the requirements of the RFP. The committee will subsequently evaluate each responsive proposal to determine which proposal provides the best value to the State based upon the weighting/scoring of the following criteria: A. PLAN OF OPERATION (10%) The Proposers understanding of the objectives of the contract, as demonstrated in their plan to address the requirements of this RFP. B. EXPERIENCE (45%) Experience of both the Proposer, assigned supervisor and staff auditors identified (if any) in the proposal will be evaluated. C. COST (45%) Attachment 1 Cost Proposal will be evaluated in relation to all cost proposals submitted. Separate cost evaluation will be conducted. 4.2 Notification of Award After the evaluation, all Proposers will be notified of the name of the selected Proposer(s). The selected Proposer(s) will be notified that their submitted proposal has been selected and that a contract will be forthcoming for execution. The original proposal, and any additions or deletions to the proposal become part of the contract. Public announcements or news releases pertaining to any contract resulting from this RFP shall not be made without prior approval from the Issuing Office. 14
New York State Office of General Services Lease Audit Services Solicitation Number 1517 5. Scope of Work 5.1 Operations Standards All audit services under any contract resulting from this RFP shall be of the highest quality. Proposer shall be advised that the Contractor will be responsible for providing all resources necessary for the completion of this contract. The service shall be subject to inspection by the State of New York at any time. 5.2 Scope The scope of the contract is to provide audit coverage for the list of leases included in exhibit A as well as any other leases assigned by the state. The successful Contractor(s) will be responsible to implement a process to assess the risk of overpayment of assigned leases and a process to audit leases assigned by OGS or to provide a rationale for why the lease does not require auditing. The scope of the individual lease audits will include audits of lease operating cost and tax escalations. Operating cost and tax escalation generally involve ensuring increases in operating costs and tax escalations are calculated in accordance with the terms of the lease. Audits may also include audit work pertaining to the terms of the lease, for example: calculation of square footage, utility cost verification or other components that have cost implications included in the terms of the lease. Contractor(s) must also be available for occasional lease analysis consulting services to be compensated via hourly rates bid. Consulting services shall only be at the request of and pre-approved by The Director of the Bureau of Internal Audit. These services will only be used in rare situations and typically will consist of advisement to the State in drafting new lease language. 5.3 Scheduling of Work The Director of OGS Bureau of Internal Audit Services or their designee will make lease audit assignments to the contractor throughout the term of the contract There are 128 leases in Exhibit A that have total rental value of $48 million and which our summary records indicate have escalation clauses in operating costs and or taxes. These are likely candidates for assignment to the Contractor(s). This is a very preliminary analysis of leases to be audited under this contract, which could be impacted by factors such as: whether increased costs have been requested by the Landlord, what the escalation clauses are based on (increased costs or an inflation rate). Many of these leases fall within the one year period whereby a Landlord may still request lease escalations and which we expect will become auditable in the next year. This spreadsheet is presented to help Proposer gage the amount of work available but in no way provides that every lease listed will be assigned to the successful Contractor(s). Additional leases may be assigned that are not on the spreadsheet so that OGS may benefit from a fresh audit perspective or to address work load issues. OGS will provide the Contractor(s) with an updated copy of Exhibit A and arrange for copies of the leases to be made available. Exhibit A lists leases that have not been audited which our lease information system indicates have escalation clauses for operating and/or tax escalation costs. This initial determination might not indicate the lease merits audit which would also be influenced by the terms of the escalation clause and whether an increase in lease payments has ever been requested. Information about actual payments made will be gathered from the tenant agency that made the payments. From this exhibit and information the Contractor will make a risk based plan of which lease audits will be undertaken first, and what leases do not merit further consideration for audit. Any determination by the contractor that a lease does not warrant an audit shall be discussed with the OGS Director of the Bureau of Internal Audit who shall have final determination. 15
New York State Office of General Services Lease Audit Services Solicitation Number 1517 5.4 Assumptions and Parameters 1. State Finance Law mandates that contracts can be audited up to six years after the end of the contract. OGS generally does not conduct audits of Landlord s expenses until the Landlord requests an increase in costs. 2. If a legal interpretation of lease terms is required, the Contractor will work with OGS Bureau of Internal Audit Services to request an interpretation of the lease term and the proper way to apply the term. Lease interpretations will be provided by OGS Legal Services and will be considered final. 3. Often agreement on the lease audit is reached after discussions and presentation of additional information. If Landlords continue to dispute the findings and OGS makes a determination that the State s interpretation of the contract and the facts stated in the audit are correct, OGS can direct Agencies to withhold increases requested or other rents due until any overpayments based on the audit are recouped. 4. Withholding of payments can result in a more serious consideration of the audit findings, submission of additional documentation and legal interpretations by the Landlord s attorney s and occasionally a lawsuit seeking recovery of rental payments claimed by Landlords and not paid. Such cases are defended by the New York State Attorney General (AG). The Contractor shall provide the background and supporting information to the attorney assigned the case. The AG s Office will make a determination based on the information provided by audit and submitted by the plaintiff Landlord. Any and all costs born by the Contractor to defend an audit conclusion will be covered by the percentage bid. Such costs might include meeting with OGS and AG attorney s and possibly presenting the audit work in court. 5.5 Staffing Expectations The Bureau of Internal Audit Services expects that all lease audits will be conducted under the supervision of experienced lease auditors identified in the proposal. Any changes in the supervisor assigned must be of comparable qualifications and experience to the person being replaced and must be approved by OGS. If the Proposer submitted the experience of staff auditors to be assigned to this contract in their proposal for consideration, then substitution of staff auditors must be of equivalent experience and subject to approval by OGS. It is expected that the Supervising Auditor or similarly experienced personnel (pre-approved by OGS) will serve as a consultant if such additional services are requested. 5.6 Security Procedures Please note that each lease location may have visitor security policies which must be followed. Contractor will work with the Bureau of Internal Audit Services to obtain contact information for each Landlord s security office. Contractor will be required to provide information such as, but not limited to, the company name, the driver s name (as it appears on ID), valid driver license number, vehicle make, model and license plate to the Bureau of Internal Audit Services and/or the Landlord s security office. 5.7 Reporting Requirements The Contractor will be responsible for the completion of a variety of administrative and reporting requirements, and the cost of same shall be included in the bid percentage. All work products shall become the property of OGS including, but not limited to, schedules of each finding demonstrating criteria from the contract, the actual payment documentation or other information substantiating calculations, source documents, discussion summaries, copies of invoices, general ledgers, etc. During the term of any contract resulting from this RFP, the Contractor shall maintain a designated officer or employee as its representative for contact with the State and for all communication and transactions relating to any contract resulting from this RFP. 16
New York State Office of General Services Lease Audit Services Solicitation Number 1517 The Commissioner s designated representative for all purposes of this contract shall be the Director of the Bureau of Internal Audit Services. Upon award of the contract and prior to the start of any work, the Contractor shall be available for an initial job meeting with the OGS Director of Bureau of Internal Audit Services. 5.8 Acceptance of Work 1. The Contractor must present potential findings to OGS for review and approval prior to seeking acceptance by the Landlord. OGS will not withhold approval without justification but will not approve grey area audit findings that have historically been interpreted to have a different meaning. Similarly OGS will not overturn audit finding settlements that have been previously resolved in a completely different interpretation. Approval of findings will not be unjustly withheld but instances where reasonable solution to a grey area has been handled in one manner will not be approved without substantial justification based on the terms of the lease. 2. Upon approval by OGS the Contractor will present the audit findings to the Landlord and provide reasonable information to the Landlord to justify the finding. If the Landlord agrees and issues a payment to the State or agrees to a credit against future rentals, OGS will notify the Contractor of the acceptance. 3. If the Contractor cannot reach an agreement with the Landlord to the results of the OGS approved audit findings after a reasonable discussion and presentation of the facts; the Contractor will inform OGS and provide the Landlord s rational for their contrary determination. OGS will make a determination of whether the amount due will be proactively withheld. When OGS makes a determination to withhold funds from future rental payments, this will constitute acceptance, the Contractor will be notified of the amount being withheld and that OGS has accepted this audit finding as a savings. 4. If such action results in a law suit against the State, the Contractor should be prepared to comply with all requests for audit information by an attorney from OGS and/or the New York State Attorney General s Office, including but not limited to preparation of affidavits and court appearances, if the case is proceeds to trial. 5. In the event audit savings claimed by the Contractor and accepted by OGS, but contested by Landlord, results in OGS withholding rent to the Landlord and paying Contractor the permissible fees based upon those savings, and the audit is subsequently disallowed either by subsequent settlement, court action or determination by the New York State Attorney General s office that the claim is not defensible, Contractor agrees to repay to OGS, the fee paid from the disallowed finding within 30 days of being notified of the resolution of the finding. 17
New York State Office of General Services Lease Audit Services Solicitation Number 1517 6. Contract Clauses and Requirements 6.1 Appendix A / Order of Precedence Appendix A Standard Clauses for New York State Contracts, dated June 2006, attached hereto, is hereby expressly made a part of this solicitation document as fully as if set forth at length herein. Appendix A is a separate document to this RFP and shall be retained for reference by the proposer. The agreement resulting from a successful award will include the following documents. Conflicts between these documents will be resolved in the following descending order of precedence: 1. Appendix A 2. The Contract 3. OGS Request for Proposal Number 1517 (This Document) 4. Selected Contractor s Proposal 6.2 Procurement Lobbying Requirement (see Appendix B) Pursuant to State Finance Law 139-j and 139-k, this solicitation includes and imposes certain restrictions on communications between OGS and an Offerer/Proposer during the procurement process. An Offerer/Proposer is restricted from making contacts from the earliest notice of intent to solicit offers/bids through final award and approval of the Procurement Contract by OGS and, if applicable, the Office of the State Comptroller ( restricted period ) to other than designated staff unless it is a contact that is included among certain statutory exceptions set forth in State Finance Law 139-j (3) (a). Designated staff, as of the date hereof, is identified on the first page of this solicitation. OGS employees are also required to obtain certain information when contacted during the restricted period and make a determination of the responsibility of the Offerer/Proposer pursuant to these two statutes. Certain findings of non-responsibility can result in rejection for contract award and in the event of two findings within a four-year period; the Offerer/Proposer is debarred from obtaining governmental Procurement Contracts. Further information about these requirements can be found on the OGS website: http://www.ogs.state.ny.us/aboutogs/regulations/defaultadvisorycouncil.html 6.3 Contractor Insurance Requirements Prior to the commencement of the work to be performed by the Contractor hereunder, the Contractor shall file with The People of the State of New York, Office of General Services (hereinafter referred to as OGS ), Certificates of Insurance (hereinafter referred to as Certificates ), evidencing compliance with all requirements contained in this Contract. Such Certificates shall be of a form and substance acceptable to OGS. Certificate acceptance and/or approval by OGS does not and shall not be construed to relieve Contractor of any obligations, responsibilities or liabilities under the Contract. All insurance required by the Contract shall be obtained at the sole cost and expense of the Contractor; shall be maintained with insurance carriers acceptable to OGS; shall be primary and non-contributing to any insurance or self insurance maintained by OGS; shall be endorsed to provide written notice be given to OGS, at least thirty (30) days prior to the cancellation, non-renewal, or material alteration of such policies, which notice, evidenced by return receipt of United States Certified Mail; shall be sent to Office of General Services, Purchasing Unit, Corning Tower, 40th Floor, Empire State Plaza, Albany, New York 12242 and shall name The People of the State of New York, its officers, agents, and employees as additional insureds there under (General Liability Additional Insured Endorsement shall be on Insurance Service Office s (ISO) form number CG 20 10 11 85). The additional insured requirement does not apply to Workers Compensation, Disability or Professional Liability coverage. 18
New York State Office of General Services Lease Audit Services Solicitation Number 1517 The Contractor shall be solely responsible for the payment of all deductibles and self-insured retentions to which such policies are subject. Deductibles and self-insured retentions must be approved by OGS. Such approval shall not be unreasonably withheld. The Contractor shall require that any subcontractors hired, carry insurance with the same limits and provisions provided herein. Each insurance carrier must be rated at least A- Class VII in the most recently published Best s Insurance Report. If, during the term of the policy, a carrier s rating falls below A- Class VII, the insurance must be replaced no later than the renewal date of the policy with an insurer acceptable to OGS and rated at least A- Class VII in the most recently published Best s Insurance Report. The Contractor shall cause all insurance to be in full force and effect as of the commencement date of this Contract and to remain in full force and effect throughout the term of this Contract and as further required by this Contract. The Contractor shall not take any action, or omit to take any action that would suspend or invalidate any of the required coverages during the period of time such coverages are required to be in effect. Not less than thirty (30) days prior to the expiration date or renewal date, the Contractor shall supply to OGS updated replacement Certificates of Insurance, and amendatory endorsements. The Contractor, throughout the term of this Contract, or as otherwise required by this Contract, shall obtain and maintain in full force and effect, the following insurance with limits not less than those described below and as required by the terms of this Contract, or as required by law, whichever is greater (limits may be provided through a combination of primary and umbrella/excess policies): a) Commercial General Liability Insurance with a limit of not less than $5,000,000 each occurrence. Such liability shall be written on the ISO occurrence form CG 00 01, or a substitute form providing equivalent coverages and shall cover liability arising from premises operations, independent contractors, products-completed operations, broad form property damage, personal & advertising injury, cross liability coverage, liability assumed in a contract (including the tort liability of another assumed in a contract) and explosion, collapse & underground coverage. 1. If such insurance contains an aggregate limit, it shall apply separately on a per job or per project basis. b) Comprehensive Business Automobile Liability Insurance with a limit of not less than $2,000,000 each accident. Such insurance shall cover liability arising out of any automobile including owned, leased, hired and non-owned automobiles. c) If the work involves abatement, removal, repair, replacement, enclosure, encapsulation and/or disposal of any petroleum, petroleum product, hazardous material or substance, the Contractor shall maintain in full force and effect throughout the term hereof, pollution legal liability insurance with limits of not less than $5,000,000, providing coverage for bodily injury and property damage, including loss of use of damaged property or of property that has not been physically injured. Such policy shall provide coverage for actual, alleged or threatened emission, discharge, dispersal, seepage, release or escape of pollutants, including any loss, cost or expense incurred as a result of any cleanup of pollutants or in the investigation, settlement or defense of any claim, suit, or proceedings against OGS arising from Contractors work. If coverage is written on a claims-made policy, the Contractor warrants that any applicable retroactive date precedes the effective date of this Contract; and that continuous coverage will be maintained, or an extended discovery period exercised, for a period of not less than two years from the time work under this Contract is completed. If the Contract includes disposal of materials from the job site, the Contractor must furnish to OGS, evidence of pollution legal liability insurance in the amount of $2,000,000 maintained by the disposal site operator for losses arising from the disposal site accepting waste under this Contract. If autos are used for transporting hazardous materials, the Contractor shall provide pollution liability broadened coverage for covered autos (endorsement CA 99 48) as well as proof of MCS 90. 19
New York State Office of General Services Lease Audit Services Solicitation Number 1517 d) If providing professional services, the Contractor shall maintain, or if subcontracting professional services, shall certify that Subcontractor maintain, errors and omissions liability insurance with a limit of not less than $5,000,000 per loss. Such insurance shall apply to professional errors, acts, or omissions arising out of the scope of services covered by this Contract and, if the project involves abatement, removal, repair, replacement, enclosure, encapsulation and/or disposal of any hazardous material or substance, it may not exclude bodily injury, property damage, pollution or asbestos related claims, testing, monitoring, measuring, or laboratory analyses. If coverage is written on a claims-made policy, the Contractor warrants that any applicable retroactive date precedes the effective date of this Contract; and that continuous coverage will be maintained, or an extended discovery period exercised, for a period of not less than two years from the time work under this Contract is completed. e) Waiver of Subrogation. Contractor shall cause to be included in each of its policies insuring against loss, damage or destruction by fire or other insured casualty a waiver of the insurer s right of subrogation against OGS, or, if such waiver is unobtainable (i) an express agreement that such policy shall not be invalidated if Contractor waives or has waived before the casualty, the right of recovery against OGS or (ii) any other form of permission for the release of OGS. Contractor acknowledges that failure to obtain any or all required insurance on behalf of OGS constitutes a material breach of contract and subjects it to liability for damages, indemnification and all other legal remedies available to OGS. f) WORKERS COMPENSATION INSURANCE AND DISABILITY BENEFITS REQUIREMENTS: Workers Compensation Law (WCL) 57 & 220 requires the heads of all municipal and state entities to ensure that businesses applying for permits, licenses or contracts document it has appropriate workers compensation and disability benefits insurance coverage. These requirements apply to both original contracts and renewals, whether the governmental agency is having the work done or is simply issuing the permit, license or contract. Failure to provide proof of such coverage or a legal exemption will result in a rejection of your bid or renewal. 1. Proof of Compliance with Workers Compensation Coverage Requirements: An ACORD form is NOT acceptable proof of workers compensation coverage. In order to provide proof of compliance with the requirements of the Workers Compensation Law pertaining to workers compensation coverage, a contractor shall: A) Be legally exempt from obtaining Workers Compensation insurance coverage; or B) Obtain such coverage from an insurance carrier; or C) Be a Workers Compensation Board-approved self-insured employer or participate in an authorized self-insurance plan. A Contractor seeking to enter into a contract with the State of New York shall provide one of the following forms to the Office of General Services at the time of bid submission or shortly after the opening of bids: A) Form CE-200, Certificate of Attestation for New York Entities With No Employees and Certain Out of State Entities, That New York State Workers Compensation and/or Disability Benefits Insurance Coverage is Not Required, which is available on the Workers Compensation Board s website (www.wcb.state.ny.us); The forms must reference this solicitation number. B) Certificate of Workers Compensation Insurance: 1) Form C-105.2 (9/07) if coverage is provided by the contractor s insurance carrier, contractor must request its carrier to send this form to the New York State Office of General Services, or 2) Form U-26.3 if coverage is provided by the State Insurance Fund, contractor must request that the State Insurance Fund send this form to the New York State Office of General Services. 20