REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
August 9, 2022
FROM
Leonard X. Hernandez, Chief Executive Officer, County Administrative Office
SUBJECT
Title
Subscription Agreement with Quorum Analytics, Inc. for Legislative Tracking Services.
End
RECOMMENDATION(S)
Recommendation
1. Approve the Subscription Agreement with Quorum Analytics, Inc., including non-standard terms, to provide legislative tracking software in an amount not to exceed $20,880 for a retroactive period of June 29, 2022 to June 28, 2023.
2. Authorize the Purchasing Agent to renew the Agreement annually for four one-year periods, through June 28, 2027, for a total cost of $118,884.
3. Direct the Legislative Affairs Director to transmit all documents and amendments in relation to this Agreement to the Clerk of the Board of Supervisors within 30 days of execution.
(Presenter: Bradley Jensen, Legislative Affairs Director, 387-4821)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Improve County Government Operations.
Operate in a Fiscally-Responsible and Business-Like Manner.
FINANCIAL IMPACT
Approval of this item will not result in the use of additional Discretionary General Funding (Net County Cost). The total Agreement will not exceed $118,884. Sufficient appropriation for the cost is included in the 2022-23 County Administrative Office (CAO) budget and will be included in subsequent CAO Recommended Budgets.
|
Year |
Cost |
|
Year 1 (2022-23) |
$20,880 |
|
Year 2 (2023-24) |
$22,237 |
|
Year 3 (2024-25) |
$23,683 |
|
Year 4 (2025-26) |
$25,222 |
|
Year 5 (2026-27) |
$26,862 |
|
Grand Total |
$118,884 |
BACKGROUND INFORMATION
Under the direction of the Board of Supervisors (Board) and in coordination with the CAO, the Legislative Affairs team implements the County’s legislative advocacy program. Legislative Affairs advocates for County policy priorities, builds positive working relationships with state and federal lawmakers, and actively tracks a broad range of legislation that may affect County programs and funding.
For many years, the Legislative Affairs team has used the online legislative software platform CapitolTrack to monitor hundreds of bills each year as they move forward through the committee process in either Sacramento or Washington, D.C. As of June 30, 2022, Legislative Affairs’ access to the CapitolTrack subscription ended. While CapitolTrack provided basic monitoring services, it did not have the same capabilities as other legislative tracking software that focused on features to assist with advocacy. In anticipation of the CapitolTrack subscription access ending, Legislative Affairs evaluated several online legislative tracking systems and found that Quorum Analytics, Inc. (Quorum) offered the best software platform with extensive features that would substantially upgrade the County’s legislative tracking capabilities. Quorum features powerful tools such as: 1) regularly updated directories of local, state, and federal lawmakers, legislative and committee staff, as well as regulatory agency staff; 2) access to news articles or policy reports that could be searched, cataloged, and mapped to indicate ties to other policy areas or policymakers; 3) analytic and statistical reporting of legislation tracked, enacted, and influenced; and 4) an integrated policy tracking of social media activity.
This item will approve an Agreement with Quorum for legislative tracking services for an annual subscription to their online platform and authorize the Purchasing Agent to execute annual renewals through June 28, 2027. The recommended Agreement is retroactive to June 29, 2022 as this allowed for legislative tracking following the end of the CapitolTrack system subscription, and will allow Legislative Affairs the ability to continue essential legislative tracking activities at an enhanced level and assist in achieving the County goal of improving County Government Operations and operating in a business-like manner. This item is being presented at this time, as this is the first date available following the required operational, fiscal, and legal reviews.
Per County Policy 11-05, contracts containing non-standard terms must be approved by the Board.
The Agreement is Quorum’s standard commercial contract, which includes terms that differ from the standard County contract and omits certain County standard contract terms. Quorum is unwilling to negotiate these terms. The non-standard and missing terms include the following:
1. Governing law is the Commonwealth of Virginia.
• The County standard contract requires California governing law.
• Potential Impact: The Agreement will be interpreted under Virginia law. Any questions, issues or claims arising under this Agreement will require the County to hire outside counsel competent to advise on Virginia law, which may result in fees that exceed the total Agreement amount.
2. Quorum may change the Agreement terms by posting a revised version online.
• The County standard contract requires that any changes to the contract to be reduced to writing, executed and attached to the original Contract and approved by the person(s) authorized to do so on behalf of Contractor and County.
• Potential Impact: The County could be agreeing to new terms without review by anyone, including County Counsel, and without approval of the new terms by the Board. County Counsel cannot advise on whether and to what extent Virginia law may affect the enforceability of unilateral changes to the terms.
3. Quorum may assign the Agreement without notice to the County and without the County’s approval in the event of merger, consolidation or purchase of all of its assets or capital stock.
• The County must approve any assignment of the contract.
• Potential Impact: Quorum could assign the Agreement to a third party or business with which the County is legally prohibited from doing business due to issues of Federal debarment or suspension and conflict of interest, without the County’s knowledge. Should this occur, the County would be out of compliance with the law until it becomes aware of the assignment and terminates the Agreement. County Counsel cannot advise on whether and to what extent Virginia law may permit or restrict a party’s right to assign without an express provision in the Agreement.
4. There is no provision in the Agreement 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, Virginia 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.
5. The County is required to indemnify Quorum against all claims alleging that use of any of the phone numbers associated with County’s texting account were used in a way that does not comply with legal or regulatory requirements or County’s prohibited use of the system submitting Personal Health Information or using the system in violation of Federal law.
• The County standard contract does not include any indemnification or defense by the County of a Contractor.
• Potential Impact: By agreeing to indemnify Quorum, the County could be contractually waiving the protection of sovereign immunity. Claims that may otherwise be barred against the County, time limited, or expense limited could be brought against Quorum without such limitations and the County would be responsible to defend and reimburse Quorum for costs, expenses, and damages, which could exceed the total Agreement amount. County Counsel cannot advise on, whether and to what extent, Virginia law may limit or expand this Agreement term.
6. The Agreement does not require Quorum to meet the County’s insurance standards as required pursuant to County Policy 11-07.
• The County Policy requires contractors to carry appropriate insurance at limits and under conditions determined by the County’s Risk Management Department and set forth in the County standard contract.
• Potential Impact: The County has no assurance that Quorum will be financially responsible for claims that may arise from the County’s use of the software, which could result in expenses to the County that exceed the total Agreement amount.
7. Quorum’s maximum liability to the County is limited to the amounts actually paid by and/or due from the County during the twelve months preceding the events allegedly giving rise to the claim.
• 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, Virginia law may limit or expand the exclusion of limits to the extent prohibited by applicable law.
8. The term of the Agreement is automatically renewing for successive periods of time the same length as the immediately preceding term.
• County Policy 11-06SP does not permit indefinite term or automatically renewing contracts unless approved by the Board.
• Potential Impact: There is no end term to the Agreement and the County is indefinitely bound to the terms and conditions of the Agreement until the County gives notice of non-renewal at least 60 days prior to the first day of the renewal term.
9. The County may not terminate the Agreement for convenience.
• 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: The County can only prevent the Agreement from automatically renewing. There is no termination permitted during a term. Any attempted termination by County without cause would result in payment liability for the full Agreement amount, which could result in payment liability where no funds are available due to lack of allocation or loss of funding.
10. Venue is in any of the state and federal courts in the Commonwealth of Virginia.
• The County standard contract requires venue for disputes in Superior Court of California, San Bernardino County, San Bernardino District.
• Potential Impact: Having a venue in the Commonwealth of Virginia may result in additional expenses that exceed the amount of the Agreement.
The CAO recommends approval of the Agreement with Quorum, including the non-standard terms, to continue and improve legislative tracking services.
PROCUREMENT
Legislative Affairs completed an informal competitive process to evaluate several online legislative tracking systems and found that Quorum offered the best software platform for legislative tracking capabilities.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Julie Surber, Principal Assistant County Counsel, 387-5455) on August 2, 2022; Purchasing (Michelle Churchill, Supervising Buyer, 387-2070) on July 25, 2022; Finance (Erika Rodarte, Administrative Analyst, 387-4919) on July 25, 2022; and County Finance and Administration (Robert Saldana, Deputy Executive Officer, 387-4342, and Matthew Erickson, County Chief Financial Officer, 387-5423) on July 26, 2022.