DATE: January 23, 2024
TO: Board of Supervisors
SUBMITTED BY: Robert W. Bash, Director of Internal Services/Chief Information Officer
Hollis Magill, Director of Human Resources
SUBJECT: Retroactive Agreement with GovernmentJobs.Com, Inc. dba NEOGOV
RECOMMENDED ACTION(S):
TITLE
1. Make a finding that it is in the best interest of the County to suspend the competitive bid process consistent with Administrative Policy No. 34 for unusual or extraordinary circumstances for the solicitation of recruitment and performance-related software systems; and
2. Approve and authorize the Chairman to execute a retroactive Agreement with GovernmentJobs.Com, Inc. dba NEOGOV for continued support and maintenance of various employee management software systems, retroactive to May 15, 2023, not to exceed five consecutive years, which include a two-year initial term with three optional one-year extensions, total not to exceed $3,070,378.
REPORT
There is no additional Net County Cost associated with the recommended actions, which will allow the County to continue using NEOGOV’s Insight, Onboard, Perform, Learn, and eForms modules, along with NEOGOV Integration, Background Check Integration, and Biddle, an employment testing software to perform critical employment management functions. This item is countywide.
ALTERNATIVE ACTION(S):
Should your Board not approve the recommended actions, the County would need to find another mechanism to pay $116,265 in outstanding invoices and would be left without a solution for multiple critical human resources functions. Your Board may direct the Human Resources and Internal Services departments to seek other solutions(s) to support recruitment, onboarding, training, and employee performance management, however this would be costly and time consuming, would require additional training of County staff and time for software implementation, and may create duplicative efforts as the County is currently searching for an enterprise resource planning (ERP) system which may include similar functionality to the NEOGOV modules.
SUSPENSION OF COMPETITION/SOLE SOURCE CONTRACT:
The Department’s request to suspend the competitive bidding process is consistent with Administrative Policy No. 34, as NEOGOV’s Insight, Onboard, Perform, Learn, and eForms modules are currently implemented and being used across multiple departments, and allows the County to centralize critical parts of the employment management process and maintain data across several platforms. The County is also currently seeking an ERP system replacement, which may include functionality similar to these NEOGOV modules, and acquiring and implementing new systems for these functions at this point would result in duplicative efforts and greater costs for the County. The Internal Services Department - Purchasing Division concurs with the Department’s request to suspend the competitive bid process.
RETROACTIVE AGREEMENT:
The recommended agreement is retroactive to May 15, 2023. The delay in bringing this to your Board on an earlier date was due to contract negotiations taking longer than anticipated.
FISCAL IMPACT:
There is no increase in Net County Cost associated with the recommended actions. Costs associated with the recommended agreement are included in the Internal Services Department’s Enterprise rate charged to departments, and costs will not exceed $3,070,378 for the total potential five-year term of the recommended agreement. Sufficient appropriations and estimated revenues are included in the FY 2023-24 Internal Services Department - Information Technology Services Division Org 8905 Adopted Budget. Ongoing costs for the remaining term of the recommended agreement will be included in future budget requests.
Currently, there is $116,265 in outstanding invoices for software costs since the expiration of agreement No. 19-464. In addition, approximately $315,472 for software costs under the recommended agreement were incorrectly applied to agreement No. 19-464. These additional costs have exceeded the contract total of $1,400,000 by $203,210 for services applicable to the recommended agreement. These costs will be reassigned upon approval of the recommended agreement.
DISCUSSION:
On June 11, 2013, your Board approved agreement No. 13-330 with NEOGOV for its online recruitment software and application tracking management system (Insight). This agreement was procured through an RFP process and expired on May 14, 2018.On May 15, 2018, the County entered into purchasing agreement No. P-18-197-C for continued use, support, and maintenance of Insight.
On September 24, 2019, your Board approved agreement No. 19-464 with NEOGOV to amend, replace, restate, and supersede purchasing agreement P-18-197-C for continued maintenance and support of Insight and allowing for the purchase of NEOGOV’s employee performance management software (Perform) and integration of employee data across modules (NEOGOV Integrations).
On September 1, 2020, your Board approved the first amendment to agreement 19-464, which increased the total compensation for the purchase of NEOGOV’s paperless, electronic onboarding software (Onboard) and a centralized learning management system (Learn).
On November 24, 2020, your Board approved the second amendment to agreement 19-464, which increased the total compensation for the purchase of NEOGOV’s eForms software, allowing Human Resources Department staff to create, store, centralize, and digitally manage personnel files. This agreement expired on May 14, 2023. The delay in bringing this item to your Board for consideration is due to contract negotiations taking longer than anticipated.
Approval of the recommended agreement will allow for the County’s continued use of NEOGOV’s Insight, Onboard, Perform, Learn, and eForms software modules to perform critical human resources functions, along with integrations allowing for employee data to remain up to date across modules. It will also allow use of Biddle, an employment testing software, which assists in streamlining a portion of the County’s recruitment process.
The recommended agreement has a potential five-year term, which includes an initial two-year term with three optional one-year extensions. The total compensation payable under the initial two-year term is $1,086,227. The total compensation payable under optional Years 3, 4, and 5 are $623,733, $660,397, and $700,021, respectively. Under no circumstance shall the maximum compensation for the recommended agreement exceed $3,070,378.
The recommended agreement includes language that deviates from the County’s standard terms and additional terms via a NEOGOV Services Agreement. The County’s Human Resources - Risk Department (HR-Risk) has reviewed the non-standard provisions and service agreement and does not recommend the Department accepting specific provisions. However, HR-Risk also recognizes that this language is standard for agreements of this nature. These non-standard provisions are:
1. Indemnification language: NEOGOV will indemnify, defend, or hold harmless the County against any third-party claims that arise from or relate to gross negligence or willful misconduct by NEOGOV in performing or failing to perform the services under this agreement and against any third-party claims that may infringe on third party intellectual rights except if (i) the County alters the service or service specifications or uses it outside the scope of use, (ii) the claim could have been avoided by using an unaltered current version of the Services or Service Specifications which were provided to the County, (iii) the County continues to use the infringing material after the subscription expires, (iv) the claim is based on upon services, information, or software not furnished by NEOGOV, or (v) the infringement is caused by the County’s actions against a third-party and services as delivered to the County and used in accordance with the terms of the agreement would not otherwise constitute infringement; and
2. Limitation of Liability: The recommended agreement includes limitation of liability by type and amount and has some additional exclusions.
a. By Type: Neither NEOGOV or the County would be liable for the error, loss of business, interruption of use, or loss or impairment of data. Additionally, neither party would be responsible for any consequential, incidental, indirect, exemplary, enhanced, or punitive damages;
b. By Amount: This language limits total aggregate liability for any claims that arise to be equal to fees paid by the County in the 12-month period preceding the event giving rise to such claim, except for claims based on breach of the data security provisions of the agreement. The total aggregate liability for claims based on breach of data security is limited to three times the amount of fees paid by the County in the 12-month period preceding the event giving rise to such claim; and
c. Exclusion: Limitation of liability does not apply to claims based on breach of the data security provisions of the agreement, claims that arise out of gross negligence or willful misconduct, or infringement on intellectual property rights.
While HR-Risk advises against accepting the above language, it recognizes this language is standard. ISD-IT is willing to accept this language due to the reasons listed below. Additionally, per the terms of the recommended agreement, the County’s language does take precedence over any other language in the agreement in the event of any inconsistency.
1. Indemnification Language: ISD-IT is comfortable with this language, as it is standard for agreements of this nature, and believes there is minimal risk of infringement on information, software or other material not provided by NEOGOV; and
2. Limitation of Liability: ISD-IT believes the language is acceptable and does not expect NEOGOV to be held liable for the County’s misuse of the software.
The recommended agreement also does not include the standard termination without cause language. However, ISD-IT believes that the risks associated with this change is an acceptable business decision due to satisfactory performance by NEOGOV since 2013.
Given how critical NEOGOV products are to central human resources functions, ISD-IT and the Department of Human Resources recommend entering into the recommended agreement to continue use of NEOGOV products to perform critical human resources functions.
REFERENCE MATERIAL:
BAI #46, November 24, 2020
BAI #1, September 1, 2020
BAI #34, September 24, 2019
BAI #19, June 11, 2013
ATTACHMENTS INCLUDED AND/OR ON FILE:
Suspension of Competition Acquisition Request Form
On file with Clerk - Agreement with GovernmentJobs.Com, Inc.
CAO ANALYST:
Ahla Yang