REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
January 9, 2024
FROM
LYNN FYHRLUND, Chief Information Officer, Innovation and Technology Department
SUBJECT
Title
California Participating Addendum to Minnesota National Association of State Procurement Officers Master Agreement for Storage Support and Maintenance Services
End
RECOMMENDATION(S)
Recommendation
1. Approve non-financial California Participating Addendum No. 7-15-70-34-006 to Minnesota National Association of State Procurement Officers Master Agreement No. MNWNC-121 with NetApp, Inc., including non-standard terms, for the purchase of NetApp storage maintenance and support, for the period of January 9, 2024 through January 31, 2024.
2. Authorize the Purchasing Agent to execute any documents that may be required by the State Contract Administrator to execute orders against California Participating Addendum No. 7-15-70-34-006, subject to County Counsel review.
(Presenter: Lynn Fyhrlund, Chief Information Officer, 388-5501)
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 Discretionary General Funding (Net County Cost). California Participating Addendum No. 7-15-70-34-006 (Addendum) to Minnesota National Association of State Procurement Officers (NASPO) Master Agreement No. MNWNC-121 (Agreement) is non-financial in nature and does not commit the County to make any purchases. However, participating in the NASPO Agreement via the Addendum allows the County to purchase NetApp, Inc. (NetApp) storage products, support, and maintenance at a reduced cost for government entities. If purchases are made under the NASPO Addendum, the Innovation and Technology Department (ITD) will adhere to County purchasing policies and return to the Board of Supervisors (Board) for approval, if necessary. Sufficient appropriation is included in the ITD Computer Operations 2023-24 budget and will be included in future recommended budgets.
BACKGROUND INFORMATION
ITD operates and maintains a NetApp storage platform as part of the enterprise storage infrastructure. This platform provides storage for large amounts of data and plays a key role in the County’s business continuity and data protection strategies. Support and maintenance for this equipment is required to receive software updates and replacement hardware in the event of failure.
NetApp is an intelligent data infrastructure company, utilized by federal, state, and local government agencies and education and healthcare markets. After conducting a competitive bidding process, the State of Minnesota awarded NetApp the Agreement for the purchase of computer equipment and storage support and maintenance services. The State of Minnesota has made this contract available for use by other government entities through the NASPO cooperative purchasing program that facilitates public procurement solicitations and agreements using a lead state model. The executed Addendum to the Agreement allows state agencies and local California government entities to make purchases under the Minnesota Agreement by following the ordering procedures outlined in the California Department of General Services’ User Instructions guide, administered by the California State Contract Administrator.
In 2018, ITD completed Request for Proposals (RFP) No. ISD118-ADM-2802, which resulted in the Purchasing Agent authorizing ITD to contract with authorized reseller Red8, LLC for NetApp’s storage maintenance and support products, for the period of April 1, 2018 through March 31, 2024. ITD has now identified the Addendum as a more efficient procurement method, which will allow ITD to continue to secure NetApp products at a discounted cost.
The Addendum to the Agreement includes the State of California General Provision - Information Technology contract. Collectively, these terms form the procurement contract, which includes terms that differ from the standard County contract and omits certain County standard contract terms. The non-standard and missing terms include the following:
1. Not all County insurance requirements pursuant to County Policy 11-07 are included. However, the Addendum does include terms substantially similar to the County standard insurance requirements, including: (i) requiring the Contractor to maintain all commercial general liability insurance, workers’ compensation insurance and any other insurance required under the contract; (ii) furnishing insurance certificates evidencing required insurance coverage acceptable to the State, including endorsements showing the State as an “additional insured” if required under the contract; (iii) providing required endorsements requested by the State; and (iv) providing a waiver of subrogation in favor of the State for its workers’ compensation policy when performing work on state owned or controlled property.
• The County standard contract requires contractors to carry appropriate insurance at limits and under conditions determined by the County’s Risk Management Department.
• Potential Impact: This insurance provision does not comply with County Policy 11-07 and potential claims not covered under the County’s standard insurance requirements could leave the County financially liable.
2. The Addendum allows the contractors to limit their liability for damages to the total price of the purchase order for the deliverable(s) or service(s) that gave rise to the loss, such that the contractor will have a separate limitation of liability for each purchase order. This limitation excludes: (i) violations of law; (ii) intellectual property indemnification obligations; (iii) indemnification obligations for third-party claims for death, bodily injury to persons or damage to real or tangible personal property caused by the contractor’s negligence or willful misconduct; and (iv) prevailing party costs or attorney’s fees.
• The County standard contract does not include a limitation of liability.
• Potential Impact: Claims could exceed the liability cap and the Addendum amount, leaving the County financially liable for the excess.
ITD recommends approval of the Addendum, including non-standard terms, to allow ITD to continue operating and maintaining its enterprise storage infrastructure.
Approval of Recommendation No. 1 will allow ITD to make a purchase before January 31, 2024 in anticipation of the NetApp storage support and maintenance service expiration date of March 31, 2024. Terms within the Agreement stipulate that any order placed before the expiration of the Agreement will be bound by those terms for the duration of the contract’s duration.
PROCUREMENT
There is no procurement associated with this item. The Addendum will be utilized to accompany future purchase orders to be approved, as necessary, per County Policy 11-04, Procurement of Goods, Supplies, Equipment and Services.
NASPO Valuepoint 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 NASPO consists of a competitive process conducted by a lead agency. Minnesota is assigned as the lead agency for the Agreement. Under this Agreement, the State of California signed the Addendum approving participation for the State, political subdivisions, and other eligible entities for the term of April 2, 2015 through January 31, 2024. As a political subdivision, the County is allowed to participate in this cooperative agreement to purchase NetApp storage maintenance and support.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Bonnie Uphold, Supervising Deputy County Counsel, 387-5455) on December 5, 2023; Purchasing (Ariel Gill, Supervising Buyer, 387-2070) on December 5, 2023; Risk Management (Victor Tordesillas, Director, 386-8623) on December 5 2023; Finance (Iliana Rodriguez, Administrative Analyst, 387-4205) on December 13, 2023; County Finance and Administration (Paloma Hernandez-Barker, Deputy Executive Officer, 387-5423) on December 18, 2023.