REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
February 11, 2025
FROM
LYNN FYHRLUND, Chief Information Officer, Innovation and Technology Department
SUBJECT
Title
Non-Financial Participation Agreement with OMNIA Partners, Public Sector, Inc. and Authorization to Utilize in the Region 14 Education Service Center Contract No. 01-143 for Technology Solutions, Products and Services
End
RECOMMENDATION(S)
Recommendation
1. Approve non-financial Master Intergovernmental Cooperative Purchasing Agreement with OMNIA Partners, Public Sector, Inc., to participate in the cooperative purchasing programs administered by OMNIA Partners, beginning on February 11, 2025, and continuing until terminated by either party.
2. Authorize County departments to utilize the Texas Region 14 Education Service Center Contract No. 01-143 for Technology Solutions, Products and Services with Dell Marketing L.P., for hardware, software, and services, from February 11, 2025, through November 30, 2025.
3. Approve the following non-financial agreements, including non-standard terms, with Dell Marketing L.P., for use of Dell hardware, software, and services, from February 11, 2025, through November 30, 2025:
a. Commercial Terms of Sale
b. APEX Subscriptions Schedule to Commercial Terms of Sale
c. End User License Agreement
d. Telemetry Data Provision
4. Authorize the Chief Information Officer or Assistant Chief Information Officer to electronically accept the Dell Marketing L.P. agreements referenced in Recommendation No. 3 and any subsequent updates, provided that such updates do not substantively amend the terms of the agreements, subject to County Counsel review.
5. Direct the Chief Information Officer or Assistant Chief Information Officer to transmit printed copies of any subsequent non-substantive updates that are electronically accepted, to the Clerk of the Board of Supervisors within 30 days of acceptance.
(Presenter: Lynn Fyhrlund, Chief Information Officer, 388-5501)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Operate in a Fiscally-Responsible and Business-Like Manner.
FINANCIAL IMPACT
Approval of this item will not result in the use of Discretionary General Funding (Net County Cost). Participating in OMNIA Partners, Public Sector, Inc. (OMNIA), allows the County to purchase Dell Marketing L.P. (Dell) hardware, software, and services at a reduced cost for government entities.
The Texas Region 14 Education Service Center (Region 14 ESC) Contract No. 01-143 with Dell Marketing, L.P., (Master Agreement) and the Dell APEX Subscriptions Schedule to Commercial Terms of Sale (Schedule), End User License Agreement (EULA), and Telemetry Data Provision (collectively, Dell Agreements), are non-financial in nature and do not commit the County to make any purchases. If future purchases are made under these Dell Agreements, the Innovation and Technology Department (ITD) will adhere to County purchasing policies and return to the Board of Supervisors (Board) for approval, if necessary.
BACKGROUND INFORMATION
ITD procures, supports, and maintains hardware and software components that drive daily County information technology operations. To ensure the most up-to-date and high-quality technology, it is necessary to routinely procure Dell hardware and software information technology-related services. Dell is a provider of computer equipment and a reseller of various software applications for the County, with most County departments utilizing its products based on best practices and competitive procurement processes.
OMNIA is a cooperative purchasing organization that ensures all cooperative contracts are compliant with public purchasing regulations and are competitively solicited with a focus on efficiency, compliance, and value. On October 4, 2022, Texas Region 14 ESC, a large school district based in Abilene, Texas, acting as the lead public agency, conducted a competitive bidding process for technology solutions, products, and services, and made the awarded Master Agreement available through OMNIA to other government agencies.
The Dell cloud services platform, APEX, is provided on a subscription-basis that offers various solutions for generative artificial intelligence, multi-cloud management, and various other “as-a-service” solutions capable of integrating and compatible with other third-party systems already in use throughout the County. The Schedule establishes the terms and conditions under which Dell will provide APEX subscriptions for use by the County.
The Texas Region 14 Education Service Center Contract No. 01-143 for Technology Solutions, Products and Services with Dell Marketing L.P. Agreement (Contract No. 01-143) is a Master Agreement that will govern the County’s terms of purchase from Dell when placed referencing this contract. Contact No. 01-143 includes terms that differ from the standard County contract and omits certain County standard terms. The County is a third-party beneficiary of Contract No. 01-143 and therefore the terms are non-negotiable by the County. The non-standard and missing terms include the following:
1. The Agreement does not require Dell to meet the County’s insurance standards as required pursuant to County Policies, 11-05, 11-07 and 11-07SP.
• The County standard contract does not include a limitation of liability.
• Potential Impact: Claims could exceed the liability cap and the Agreement amount leaving the County financially liable for the excess. County Counsel cannot advise on whether, and to what extent, any non-California law may limit or expand the exclusion of limits to the extent prohibited by applicable law.
2. Dell’s maximum aggregate liability to all parties ordering under Contract No. 01-143 is limited to the total amount received by Dell during the prior 12 months of the agreement for the specific product or service giving to such claim, without any exclusions.
• The County standard contract does not include a limitation of liability.
• Potential Impact: Claims could exceed the liability cap and the Agreement amount leaving the County financially liable for the excess. County Counsel cannot advise on whether, and to what extent, any non-California law may limit or expand the exclusion of limits to the extent prohibited by applicable law.
3. Payment terms are Net 30 date of invoice with late payment interest of 1.5% per month.
• County standard payment terms are Net 60 days with no interest or late payment penalties.
• Potential Impact: County standard processing time is Net 60 days or more. Failing to pay within 30 days may result in a material breach of the Agreement, which could allow Dell to seek legal remedies, including charging the County interest at a rate of 1.5% monthly, which could exceed the Agreement amount.
The Dell Agreements supplement the terms of Contract No. 01-143 and are Dell’s standard commercial agreements, which include non-standard terms and omit certain County standard terms. The Dell Agreements are non-negotiable clickwrap agreements accepted by click-to-accept. The non-standard and missing terms include the following:
1. Governing law is the State of Texas
• The County standard contract requires California governing law.
• Potential Impact: The Agreement will be interpreted under Texas law. Any questions, issues or claims arising under this Agreement will require the County to hire outside counsel competent to advise on Texas law, which may result in fees that exceed the total Agreement amount.
2. There is no provision in the Contract No. 01-143 addressing each party’s responsibility for paying attorneys’ fees.
• The County standard contract requires each party to bear its own costs and attorney fees, regardless of who is the prevailing party.
• Potential Impact: County Counsel cannot advise on whether, and to what extent, Texas law may affect a party’s requirement to pay the prevailing party’s attorneys’ fees and costs in a legal action where no specific provision is provided in the Agreement.
3. Venue for disputes arising under the Contract No. 01-143 is in the state and federal court of either Travis or Williamson County, Texas.
• County Policy 11-05 requires venue for disputes in Superior Court of California, County of San Bernardino, San Bernardino District.
• Potential Impact: Having a venue in either Travis or Williamson County, Texas may result in additional expenses that exceed the amount of the Agreement.
ITD recommends approval of the Dell Agreements, including non-standard terms, to allow ITD to purchase computer hardware, software, and services authorized under Texas Region 14 ESC Contract No. 01-143 to ensure the most up-to-date and high-quality technology is available to County users.
PROCUREMENT
OMNIA Partners is a cooperative purchasing program that helps facilitate public procurement and can provide competitive pricing options due to its collective purchasing power. The procurement under OMNIA consists of a competitive process conducted by a lead agency.
OMNIA Texas Region 14 ESC Contract No. 01-143 with Dell is a competitively solicited, publicly awarded cooperative contract and allows the County to Purchase Dell products and services. The Purchasing Department concurs that the selection process used by Texas Region 14 ESC meets the County’s requirements for a formal competitive process and supports the use of OMNIA Texas Region 14 ESC Contract No. 01-143.
The Dell Agreements, including non-standard terms, will be used to accompany future purchase orders to be approved, as necessary, per County Policy 11-04, Procurement of Goods, Supplies, Equipment, and Services.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Bonnie Uphold, Supervising Deputy County Counsel, 387-5455) on December 20, 2024; Purchasing ( Monica Centeno, Lead Buyer, 387-2620) on December 23, 2024; Risk Management (Gregory Ustaszewski, Staff Analyst, 386-9008) on December 23, 2024; Finance (Ivan Ramirez, Administrative Analyst, 387-4020) on January 8, 2025; and County Finance and Administration (Paloma Hernandez-Barker, Deputy Executive Officer, 387-5423) on January 10, 2025.