Page 246 - Automated Fingerprint Identification Systems (AFIS)

CONTRACTUAL ISSUES REGARDING THE PURCHASE OF AN AFIS 231

Referred to as Appendix A, this document reflects both statutory requirements
and control agency mandates. A New York State governmental agency issuing
a RFP has no authority to amend these terms. It is in everyone’s best interest
that the vendor clearly understands that these terms exist and assesses the risk
and costs the terms place on the procurement.
The second category can be referred to as agency-specific clauses. These
terms result from the governmental agency’s efforts to standardize terms and
conditions for its contracts. While not required in statute or regulation, these
terms and conditions represent preferred (or internally mandated) practices.
However, consideration should be given to whether these standardized terms
and conditions are appropriate for an AFIS procurement. One way to test the
appropriateness of these terms is to permit vendors to take written exceptions
as part of the proposal. This approach has the benefit of continuing standard-
ized terms and conditions (and facilitating the governmental agency’s ultimate
implementation of the contract), but still providing the flexibility to permit
changes to reflect the unique circumstances. If this approach is selected,
however, the government is obligated to determine how such exceptions will
be evaluated.
The third category includes those terms that the government acknowledges
will be subject to negotiation. The RFP could include proposed contractual lan-
guage with an express acknowledgement that the government reserves the right
to negotiate the terms and conditions. Alternatively, the government could
include the proposed language with the reservation of rights and require the
vendor to provide counter language. In the former option, the proposed lan-
guage puts the vendor on notice and permits the vendor to take the concepts
into consideration when costing out the proposal. The latter course of action
moves contract negotiations forward by identifying areas of agreement and pos-
sible resolution.
This “subject to negotiation” category identifies those clauses typically result-
ing in negotiation or that the government intends to negotiate, such as payment
schedules, escrow requirements, indemnification, and consequences for the
failure to perform. This recognition should facilitate negotiations and permit
identification of different solutions employed to address common contractual
matters.

9.7.6 OTHER SUGGESTED CONTRACTUAL ISSUES TO ADDRESS
IN THE RFP

As noted initially, this chapter does not address all the elements that must be
included in a RFP. The following sections describe topics that may require