REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
December 5, 2023
FROM
SHANNON D. DICUS, Sheriff/Coroner/Public Administrator
SUBJECT
Title
Agreements for Electronic Statement Of Personal History Software Subscription Services
End
RECOMMENDATION(S)
Recommendation
1. Approve the following service agreements, including non-standard terms, for the provision of software subscription services:
a. Master Software Subscription Services Agreement with Miller Mendel, Inc., for the provision of access to Miller Mendel, Inc. electronic Statement Of Personal History software and support services to conduct pre-employment background investigations, in the amount of $222,476 for the period of December 6, 2023 through December 5, 2024, with the option to extend the term by two additional one-year periods, or one additional two-year period.
b. Non-financial Letter of Agreement with Experian Information Solutions, Inc., for use of its Employment Insight with Fraud Shield service, required by Miller Mendel, Inc., to be used in conjunction with the electronic Statement Of Personal History software subscription.
2. Authorize the Sheriff/Coroner/Public Administrator or Undersheriff to execute change orders to the Master Software Subscription Services Agreement with Miller Mendel, Inc., as needed, subject to review by County Counsel, so long as the total aggregate amount of such change orders does not exceed $33,371 (15%) for Recommendation No. 1.a, and the change orders do not amend the agreement term.
3. Direct the Sheriff/Coroner/Public Administrator or Undersheriff to transmit copies of all change orders to the Clerk of the Board of Supervisors within 30 days of execution.
(Presenter: Ernie Perez, Deputy Chief, 387-3760)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Improve County Government Operations.
Operate in a Fiscally-Responsible and Business-Like Manner.
Provide for the Safety, Health and Social Service Needs of County Residents.
FINANCIAL IMPACT
Approval of this item may result in a future request for additional Discretionary General Funding (Net County Cost). The Sheriff/Coroner/Public Administrator (Department) is not requesting Discretionary General Funding at this time for the electronic Statement Of Personal History (eSOPH) software subscription. The Department anticipates having sufficient funding for the software for 2023-24 within its existing budget allocation; however, in the event of insufficient funding, a request for additional Discretionary General Funding will be included as part of the Year-End Budget Report or future recommended budgets.
BACKGROUND INFORMATION
The Department’s Employee Resources Division (ERD) recruits potential employees and volunteers and conducts background investigations to determine their suitability for sworn and professional positions in a law enforcement environment. Additionally, ERD conducts investigations for Carry a Concealed Weapon (CCW) permit applicants. ERD conducts approximately 3,500 background investigations for applicants seeking employment or that want to volunteer with the Department on an annual basis. A combination of sworn and contracted civilian staff are assigned to conduct those background investigations. Currently, background investigations require the use of hard-copy printed forms and questionnaires. These forms are mailed or hand-delivered to and from applicants and references using email, when applicable, or standard United States Mail. The collected forms are individually sorted and classified by applicant. This paper-based system is time, cost, and labor intensive.
Miller Mendel, Inc.’s (MMI) eSOPH software is designed to process in-depth pre-employment background investigations conducted by law enforcement and public safety related agencies. eSOPH is an internet based, case management system designed to electronically conduct all steps of the background investigation process, from acceptance of an applicant’s background information to the hiring of the applicant. eSOPH is expandable and customizable to meet ERD’s needs. It is expected that the use of eSOPH would reduce the time spent by staff performing background investigations by up to 50 percent, helping to make faster hiring decisions.
The recommended item will accept MMI’s Master Software Subscription Services Agreement (MSSSA) and the non-financial Letter of Agreement (LOA) with Experian Information Solutions, Inc. (EISI). EISI requires acceptance and signature of its LOA to allow the Department’s authorized users to have access to its Employment Insight with Fraud Shield software and submit inquiries, through eSOPH, to validate the applicants’ identity as disclosed to ERD. Both the MSSSA and the LOA include non-standard terms that differ from the County’s standard contract language, as follows:
1. MMI limits its liability to gross negligence, willful misconduct, violations of law, failures to act, or the errors or omissions, of its officers, owners, employees, agents or contractors and does exclude indemnification obligations, gross negligence, willful misconduct, and violations of law.
• The County standard contract does not permit the Contractor to limit its liability in the performance of a contract, including infringement of Intellectual Property Rights (IPR) for the use of software or related services.
• Potential Impact: The County could potentially not recover and be responsible for damages, including attorney’s fees, resulting from third party claims incurred during the subscription period, as MMI is not obligated to defend, indemnify, or hold the County harmless for infringement of IPRs.
2. The MSSSA requires mutual indemnification to the extent permitted by law.
• The County standard contract requires the Contractor to indemnify and hold the County harmless, in accordance with County Policy 11-07.
• Potential Impact: The County and MMI will have to indemnify each other based on their comparative fault. The County could be liable for potential harm or loss incurred by MMI.
3. The MSSSA includes some, but not all of the County’s standard insurance terms. The MSSSA also does not include the County’s insurance standards for a Waiver of Subrogation Rights against the County, Worker’s Compensation and Automobile Liability Insurance as required pursuant to County Policy 11-07.
• The County’s Policy requires contractors to carry appropriate insurance limits and under conditions determined by the County’s Risk Management Department, as set forth in the County standard contract.
• Potential Impact: The County has no assurance that MMI will be financially responsible for claims that may arise from the County’s use of eSOPH which could result in expenses to the County that exceed the total subscription and services amount.
4. The MSSSA does not include termination for convenience without penalty. Either party may terminate the contract with 60 days’ prior notice during a subscription term and all fees for the remainder of the term are due and payable.
• The County standard contract gives the County the right to terminate the Contract, for any reason, with a 30-day written notice of termination without any obligation other than to pay amounts for services rendered and expenses reasonably incurred prior to the effective date of termination.
• Potential Impact: There is no termination for convenience without penalty. Upon any termination by the County without cause, the County is required to pay the subscription fees for the remaining term, which could result in payment liability where no funds are available due to lack of allocation or loss of funding.
5. The MSSSA is silent in regard to venue to resolve legal disputes.
• The County standard contract requires venue for disputes in Superior Court of California, County of San Bernardino, San Bernardino District.
• Potential Impact: MMI is located in King County, Washington. Having no expressed venue in the MSSSA could potentially result in King County, Washington as the venue applied to disputes arising under this contract which may result in additional expenses that exceed the amount of the subscription.
6. The LOA does not include the standard County insurance or indemnification requirements pursuant to County Policy 11-07.
• The County standard contract requires contractors and sub-contractors to carry appropriate insurance limits and under conditions determined by the County’s Risk Management Department, as set forth in the County standard contract.
• Potential Impact: The County has no assurance that EISI will be financially responsible for claims that may arise from the County’s use of its software, through eSOPH, which could result in expenses to the County that exceed the total subscription and services amount.
The Department recommends approval of both the MSSSA and LOA, including non-standard terms, as it will enable the Department to use a streamlined software-based system to modernize the employment and volunteer applicant background investigation process, without compromising the quality of the investigations. County Counsel and Risk Management have reviewed and provided input on the proposed subscription agreement with MMI and EISI.
PROCUREMENT
After the review of research of other enforcement agencies using similar services, and the informal solicitation conducted by the Probation Department of three software-based background investigation systems, the Department determined that MMI’s eSOPH system best meets the current Department background manual processes and offers an efficient fully paperless system for both sorn and/or civilian background service requirements. The terms in the MSSSA may be used to accompany future purchase orders issued to MMI, as necessary, per County Policy 11-04. Additionally, County Policy 11-05 requires departments to obtain approval from the Board of Supervisors for the procurement of goods and services with non-standard terms and conditions.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Grace B. Parsons, Deputy County Counsel, 387-5455) on November 2, 2023; Purchasing (Michael Candelaria, Lead Buyer, 387-0321) on November 7, 2023; Risk Management (Victor Tordesillas, Director, 386-8621) on November 7, 2023; Finance (Erika Rodarte, Administrative Analyst, 387-4919) on November 15, 2023; and County Finance and Administration (Robert Saldana, Deputy Executive Officer, 387-5423) on November 16, 2023.