ESBD_309760_1725024589998_Addendum 3 CAS Open Enrollment Solicitation.doc

Texas Workforce Commission (TWC) Procurement # 3202300132 Procurement Name: Communication Access Services (Interpreting Services and CART Services) Note: Open the hyperlinks below by holding down the CTRL key while clicking on the hyperlink. Clicking the hyperlink will not open the form directly, rather it will initiate a download of the form(s), i.e. Word or PDF. Once downloaded, you can enter the necessary information.

general information

A. Contract Type: Communication Access B. Posting

This is a notice of Open Enrollment for Communication Access Services to be provided to Vocational Rehabilitation (VR) Customers or TWC VR Staff served by the Texas Workforce Commission (TWC) VR Division on behalf of TWC. Opportunities are available to provide Communication Access Services for TWC VR Workforce Solutions offices in all areas of the state. Applicants must meet all requirements and specifications outlined herein to be eligible to provide Communication Access Services.

C. TWC Point of Contact

1. Contact the Procurement for questions related to:

· Solicitation:

· Section I GENERAL INFORMATION, Section III PROVIDER ENROLLMENT PACKET SUBMITTAL, or

· Other purchasing related inquires.

Procurement contacts:

a. Rebecca Stone rebecca.stone@twc.texas.gov

b. Consumer.Procurement@twc.texas.gov

2. Contact the Standards mailbox at: vr.standards@twc.texas.gov for questions related to:

· Solicitation:

· Section II SCOPE OF WORK, Section III PROVIDER ENROLLMENT PACKET, or

· VR-SFP Manual, such as:

· staff qualifications,

· service delivery requirements,

· requirements outlined in the VR-SFP Chapter 3: Basic Standards .

Note: If you prefer to speak with someone, we can schedule a phone meeting when requested via vr.standards@twc.texas.gov.

D. Definitions

Communication Access Realtime Translation (CART) Provider

An individual who holds a current CART Certification Level I through Level V certificate of competency issued by the Texas Court Reporters Association or a current Certified Realtime Reporter (CRR), Certified CART Provider (CCP), Certified Realtime Captioner (CRC) or Certified Broadcast Captioner (CBC) certificate of competency issued by the National Court Reporter Association.

Communication Access Realtime Translation (CART) Services

Provision of on-screen displayed translation of the spoken word by a CART Provider.

Certified Deaf Interpreter (CDI)

A specialist who provides expertise in culture and linguistics in an interpreting situation. CDIs are individuals with native signing ability and lifelong experiences as a Deaf or hard of hearing individual who have undergone specialized training to become an interpreter. They may or may not work in tandem with a hearing interpreter.

Certified Interpreter

An individual who holds a current certificate issued by the HHSC Office for Deaf and Hard of Hearing Services, Board for Evaluation of Interpreters (BEI) or a certificate of interpreter competency issued by the Registry of Interpreters for the Deaf (RID). Certified Interpreters are governed by The Code of Professional Conduct of the National Association of the Deaf (NAD) and the Registry of Interpreters for the Deaf, Inc. (RID), as adopted by HHSC.

Communication Access Services

A global term which describes the provision of sign language interpreting, transliterating, and/or CART services in order to provide communication to those who are unable to utilize hearing function.

a.

Customer Information;

b.

Protected Health Information (PHI), in any form including without limitation, Electronic Protected Health Information or Unsecured Protected Health Information;

c.

Sensitive Personal Information, as defined by Texas Business and Commerce Code, § 521.002(a)(2);

d.

Federal Tax Information;

e.

Personally Identifiable Information (PII) as defined by Texas Business and Commerce Code § 521.002(a)(1);

f.

Social Security Administration Data, including, without limitation, Medicaid information;

g.

All privileged work product; all information designated as confidential under the constitution and laws of the State of Texas and of the United States, including the Texas Health and Safety Code and the Texas Public Information Act, Texas Government Code, Chapter 552;

h. Personally Identifiable Information defined by 2 CFR 200.1;

i. Information deemed confidential under The Rehabilitation Act of 1973, 29 U.S.C. Chapter 16, as amended, and implementing regulations 34 C.F.R. Parts 361 through 396.

Rates are based either on the HHSC Region in which the services are provided or based on the HHSC Region in which the specific requested Communication Access Service Provider resides.

Interpreting Services

Provision of voice to sign, sign to voice, gestural to sign, sign to gestural, voice to visual, or visual to voice services for communication access.

Non-Certified Interpreter

An individual who lacks interpreter certification but is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary.

Qualified Interpreter

An individual who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary.

Tactile Interpreting

Sign language interpreting services that is provided to a deafblind individual who receives the information by sense of touch with one or two hands.

Transliterator

An individual who holds a current interpreter certificate issued by the HHSC Office for Deaf and Hard of Hearing Services, Board for Evaluation of Interpreters (BEI) or National Registry of Interpreters for the Deaf (RID) verifying competency in either oral interpreting or sign-based communication system.

Trilingual Interpreter

A Certified Interpreter who is able to meaningfully and accurately understand, produce, and transform conversations between a signed language, the English language, and a language other than English.

E. Open Enrollment Period

a. Start Date: December 9, 2022

b. End Date: March 31, 2025, 3:00 p.m. (CT) F. Certifications

By signing and submitting the Execution of Offer form with the Provider Enrollment Packet, Applicant attests to its compliance with the statements contained in the Applicant Certifications embedded below.

G. Contract Award

TWC intends to award contracts to qualified Applicants throughout the enrollment period and may award multiple contracts within individual counties or groups of counties.

Entities, Applicants and/or individuals that are debarred or excluded by the federal government are excluded from receiving Federal contracts or certain subcontracts, and certain types of financial and nonfinancial assistance and benefits. Entities, Applicants and/or individuals that are debarred or excluded by the State of Texas are excluded from doing business with the state.

TWC may consider past performance, or any other factor it deems to be in the best interest of TWC or the State of Texas, when determining whether to award a contract to an Applicant.

Participation in a post-award orientation will be required before any services related to the awarded contract can be performed.

H. Compensation

Contractors must comply with the following sections defined in the VR-SFP- Chapter 24: Communication Access Services for the services being delivered: Service Descriptions, Staff Qualifications, Process and Procedures, and Outcomes Required for Payment. Payments made to Contractors will be based on the Fee Schedule for the applicable service as described in the VR-SFP Manual when all requirements have been achieved.

Contractors must also be in compliance with VR-SFP Manual Chapter 3: Basic Standards.

Additional payment requirements may be imposed on Contractors through the contract executed with successful applicants.

I. TWC Standard Terms and Conditions

Contracts resulting from this solicitation will include the TWC Standard Terms and Conditions for Customers embedded below.

I. Scope of Work J. Provider Requirements, Responsibilities, and TWC Policies

Providers must be knowledgeable about their responsibilities, the service requirements and TWC policies applicable to them.

K. Standards for Providers

Providers under contract with TWC must adhere to currently published VR-SFP Manual for the dates of services during which any services are provided to a Customer.

Notice of upcoming changes to the VR-SFP Manual is published on the Vocational Rehabilitation Providers’ Resources page at least thirty (30) days in advance of the effective date of the changes. Each Provider is contractually responsible for maintaining compliance with the most recent VR-SFP Manual.

A revision list that summarizes any formal changes to the VR-SFP Manual can be found on the Vocational Rehabilitation Standards for Providers Revision Log TWC GovDelivery list notifies Contractors and Providers every time revisions are posted to the VR-SFP Manual and other important information. All Contractors should subscribe to TWC GovDelivery to gain these notifications. Visit the TWC GovDelivery website, enter an email address, and select the topic ‘Vocational Rehabilitation Contractors and Providers News’ to subscribe.

Questions related to the content found in the VR-SFP Manual can be sent to vr.standards@twc.texas.gov.

L. Required Insurance

Contractors are responsible for their actions and the actions of their employees and sub-contractors. Insurance can provide protection to contractors from claims of negligence made by Customers.

Contractors must maintain insurance as described in the VR-SFP Manual, Chapter 3 where Insurance Requirements are discussed. Insurance requirements are subject to change after posting the proposed chances on the Vocational Rehabilitation Providers’ Resources page for at least 30 days.

M. COMMUNICATION ACCESS SERVICES Scope of Work

TWC-VR seeks qualified Applicants with expertise in the following areas:

· Sign Language Interpreting Services for American Sign Language (ASL) and other forms of sign language that more closely mirror the Clients’ natural form of communication. Also included in this category are Certified Deaf Interpreter (CDI) services, Trilingual Interpreting Services, and Tactile Interpreting Services which utilizes sign language and fingerspelling received by sense of touch with one or two hands.

· Communication Access Real Time (CART) Services, which occur when verbal information is converted into text and displayed on a computer, television, or projection screen for an individual to read and follow. Applicants must have the capability of providing services either onsite or remotely.

Communication Access Services could involve working directly with a single client or multiple clients in various settings. Due to the physical demands of providing Communication Access Services, in some cases of extended service, two or more individual Providers may be required.

Providers under contract with TWC must adhere to terms of the contract, as well as, the VR-SFP manual for the dates of services during which any services are provided to a Customer or TWC VR Staff. Guidelines for the Scope of Work for Communication Access Services Contracts are outlined and can be found at the VR SFP Manual.

Staff qualifications, service definition, process, procedures, outcomes required for payment and fees for Communication Access Services can currently be found in VR-SFP Chapter 24: Communication Access Services. At a minimum, the Applicant must have at least one person that meets the staff qualifications for each service included in the application.

An Applicant applying for a contract must comply with the following VR-SFP Manual chapters as well.

· Chapter 1: Introduction to Vocational Rehabilitation

· Chapter 2: Obtaining a Contract for Goods and Services

· Chapter 3: Basic Standards The UNTWISE Director credential is not required for Communication Access applicants.

N. Service Areas This is a statewide open enrollment solicitation. All Texas counties are included in this solicitation.

II. Provider Enrollment Packet Submittal

O. Completed Enrollment Packets

Completed Enrollment Packets may be submitted at any time during the enrollment period. All forms must be completed in their entirety. For qualified Applicants that submit complete applications, contracts will be developed as they are approved. The volume of applications may vary during the enrollment period, and contracts may take three months or more to be finalized, depending upon volume and workload.

Submittal of Enrollment Packets must be made via email transmission to: consumer.procurement@twc.texas.gov.

TWC is not responsible for applications sent to an address other than that stated above, an application submitted after the closing date, illegible, incomplete, corrupted, or otherwise considered disqualified due to failure of electronic equipment or operator error.

Disqualification of an application can occur when an applicant fails to:

· submit an application in accordance with the requirements of the solicitation; or

· submit requested corrections or additional documentation within 14 days unless another timeframe is specified by TWC.

P. Encrypted Format

3. Important:

All emailed submissions must be received by TWC in an encrypted format to protect the content from being read by entities other than the intended recipients.

No mailed or hand delivered application will be accepted.

If you do not have encryption software, email the procurement TWC Point of Contact listed in Section I. C. TWC Point of Contact and request that an email be sent to you. Submitting your application to the TWC Point of Contact by return email will cause your submission to be received by TWC in an encrypted format when all required steps are followed.

4. Email Subject Line shall read:

Communication Access OE Application, Procurement# 3202300132

5. Enrollment Packet Contents and Organization (Attachments):

Attached documentation shall include all required information delineated in Section III. C Provider Enrollment Packet Submittal below. Submit each document/form as a separate document in the email as an attachment.

The application will be rejected if the Applicant does not submit documents separately as described below.

Organize the application following the defined order and use the naming conventions for each attachment as described in Section III. C Provider Enrollment Packet Submittal.

ALL emailed attachments MUST BE SCANNED IN PDF FORMAT FOLLOWING THE DIRECTIONS in Section III. C Provider Enrollment Packet Submittal.

Ensure each document requiring signature is properly signed and dated.

Q. Provider Enrollment Packet Submittal (Contents and Organization)

TAB 1: Execution of Offer

Complete the Execution of Offer form.

Naming Convention for submission:

T1_Applicant’s Legal Name_Execution of Offer TAB 2: W-9 and Direct Deposit Form (VR1020) Alternative W-9 forms will not be accepted.

Complete the VR1020, W-9 and Direct Deposit Form.

· Refer to the VR1020 instructions and to TWC Substitute W-9 and Direct Deposit Form for guidance.

· If the TWC1020 shows a “Business Name” (DBA) designation in Box 2, include a copy of County DBA registry letter.

· If the TWC1020 uses an “EIN” in box 6, include a copy of IRS letter assigning Employer Identification Number.

Naming Convention for submission:

T2_ Applicant’s Legal Name_W-9

TAB 3: Child Support Certification Complete the VR1305, Child Support Certification form.

Refer to the VR1305 instructions for additional guidance.

Provide the name and social security number (SSN) of the individual or sole proprietor, or if not a sole proprietorship, of each partner, shareholder, or owner with an ownership interest of at least twenty-five (25) percent of the business entity.

If no one person owns twenty-five (25) percent or more of the business, state Not Applicable (N/A) in the Name/SSN field and complete the remaining sections.

Must be signed by the entity’s legal authorized representative.

Naming Convention for submission:

T3_ Applicant’s Legal Name_VR1305

TAB 4: Form VR3443, TWC VR Standards for Provider Certification Complete VR3443, TWC VR Standards for Provider Certification form.

Must be signed by the entity’s legal authorized representative.

Naming Convention for submission:

T4_ Applicant’s Legal Name_VR3443

TAB 5: Form VR3444, Conflict of Interest Certification

Complete the VR3444, Conflict of Interest Certification form.

Must be signed by the entity’s legal authorized representative.

Naming Convention for email submittals:

T5_Applicant’s Name_VR3444

TAB 6: Form VR3445, Provider Insurance Certification Applicants with or without insurance must complete the form VR3445, Provider Insurance Certification.

Refer to Section II C. Required Insurance for additional information.

Naming Convention for email submittals:

T6_APPLICANT Legal Name_VR3445

TAB 7: Form VR3441A Entity Headquarters Information Management Team Complete the VR3441A Entity Headquarters Information Management Team form to record the applicant’s management team information.

Naming Convention for email submittals:

T7_Applicant’s Legal Name_VR3441A

TAB 8: VR3441B Entity Headquarters Information - Services Complete VR3441B, Entity Headquarters Information-Services and Goods-Part B form to describe the Applicant’s staff experience, skills and to indicate what services the Applicant is applying for to gain a contract.

To be eligible to apply for a service the Applicant must have at least one (1) person who meets the qualifications to provide the service at application.

Naming Convention for email submittals:

T8_Applicant’s Legal Name_VR3441B

TAB 9: Form VR3441C Entity Headquarters Information - Location(s) Complete VR3441C Entity Headquarters Information - Location(s) form.

The VR3441C must be completed by all Applicants to record the counties where the Applicant is able to provide services with the staff currently hired. Counties can be added and removed as staff availability changes, without an amendment to the contract, by completing and submitting a new 3441C to the assigned Regional Quality Assurance Specialist.

Naming Convention for email submittals:

T9_Applicant’s Legal Name_VR3441C

TAB 10: Staff Qualifications Certificates TWC VR requires documentation for at least one staff person who meets the following criteria to be submitted with the application:

· Interpreter Services for Deaf and Hard of Hearing: A Certified Interpreter must hold a current certificate issued by the Texas Health and Human Services (HHS) Office for Deaf and Hard of Hearing Services, Board for Evaluation of Interpreters (BEI), or a certificate of interpreter competency issued by the Registry of Interpreters for the Deaf (RID). Certified Interpreters are governed by the Code of Professional Conduct of the National Association of the Deaf and by RID, as adopted by HHS.

· Communication Access Realtime Translation (CART) provider must hold one of the following:

· A current CART Certification Level I through Level V certificate of competency issued by the Texas Court Reporters Association

· A current Certified Realtime Reporter (CRR) certificate

· A Certified CART Provider (CCP) certificate

· A Certified Broadcast Captioner (CBC) certificate

· A Certified Realtime Captioner (CRC) certificate of competency issued by the National Court Reporter Association

Naming Convention for submission:

T10_ Staff Person’s Legal Name_Certificate(s)

EXECUTION OF OFFER

Procurement # 3202300132

(Open Enrollment Communication Access Services (CAS))

By signing below Applicant agrees to provide the services described in this open enrollment solicitation, and to the Applicant Certifications in sections 1.6 of this solicitation document.

Place your signed Execution of Offer form behind TAB 1 in the Enrollment Packet.

Authorized Signatory

Date Signed

Printed Name

Instructions

1. Provide complete organizational information in the spaces provided below.

2. 2. Enter either your organization’s Texas Identification Number or Federal Tax I.D. Number.

3. 3. Provide your business organization type, e.g. sole proprietorship, partnership, non-profit corporation, for profit corporation etc.

Legal Entity Name

Mailing Address

City, State & Zip Code

Phone No.

E-Mail Address

Texas Identification Number (TIN)

Federal I.D. Tax Number

Business Organization Type

- 1 -

VR T&Cs (01-30-24) V1

Attachment 1

Texas Workforce Commission (TWC) – VR Terms & Conditions

(01/2024)

By responding to the solicitation, or fulfilling the contract, awarded Purchase Order (PO), procurement, or service authorization (SA) the Vendor agrees to the terms and conditions below, which apply to and become a part of every Texas Workforce Commission (TWC) purchase. Only mutual written exceptions will be valid. Where a purchase is made without the Invitation for Bids (IFB), Request for Offers (RFO), Open Enrollment (OE), or Request for Proposals (RFP) process, IFB/RFO/RFP/OE/Proposal, equates to “Purchase Order” or “Contract” and “Bidder/ Offeror/Proposer/Respondent/Contractor” equates to “Vendor.” Any specification in the solicitation or subsequent contract that conflicts with these standard terms and conditions takes precedence. All references to “days” shall be calendar days unless specified otherwise.

***NOTE TO VENDORS: Any terms and conditions attached to a Vendor’s solicitation response will not be considered unless the Vendor specifically refers to them on the face of the first page of its response.

***WARNING: Such terms and conditions may result in disqualification of the submitted Vendor’s response (e.g., responses with a requirement to apply the laws of a State other than Texas.)

The applicability of a number of the terms and conditions below are contingent on the services and products being considered in the solicitation, contract, PO, SA, or procurement. Those terms and conditions will be noted “(As applicable to the services/products)”.

SOLICITATION RESPONSE REQUIREMENTS (As applicable to the services/products.)

1.1 Written Specifications: TWC will not be bound by any oral statement or representation contrary to the written specifications contained in the solicitation.

1.2 Incomplete Responses: Late, illegible, incomplete and/or unsigned responses may be deemed non-responsive and may not be considered.

1.3 Freight: Prices quoted are to include freight prepaid, F.O.B. Destination (Free on Board). Enter unit price on quantity and unit of measure specified - extend and show total. In case of errors in extension, unit prices shall govern.

1.4 Firm Pricing: Prices submitted are expected to be firm for TWC acceptance for one hundred eighty (180) days from the solicitation deadline. "Discount from list" offers are not acceptable unless specifically requested. Cash discounts will not be considered in determining the low offer. All cash discounts submitted will be taken if earned. Prices must remain firm for the duration of the term of the PO/contract.

The default Firm Pricing timeframe in this section may be superseded by specific Firm Pricing timeframes in the solicitation or in other parts of the contract.

1.5 Ties: In the case of tie bids, the award will be made pursuant to the preferences listed under 34 Texas Administrative Code (TAC) §20.306.

1.6 Preferences: In making an award, TWC shall apply the preferences listed at 34 TAC §20.306. For purchase or lease of computer equipment TWC shall apply a preference for manufacturers that have a computer recycling program as described in 1 TAC §217.11.

1.7 Bid Alteration/Withdrawal: A submitted response to a solicitation cannot be altered or amended after the solicitation deadline, except by formal negotiation via the RFO/RFP processes. Any alteration made before the solicitation deadline is to be initialed by Vendor or the Vendor’s authorized agent. Vendors are not allowed to withdraw their submitted response after the solicitation deadline without approval by TWC.

1.8 Rejection of Bids: Under Texas Government Code §2156.008, TWC may reject a bid in which there is a material failure to comply with specification requirements. TWC may reject all bids or parts of bids if the rejection serves the State’s best interest.

1.9 Tax Exempt: State use purchases are exempt from the State Sales tax and Federal Excise tax. Do not include tax in bid. Excise Tax Exemption Certificates are available upon request.

1.10 Identify All Parties: TWC requires all business partners, equipment, support or maintenance providers who will perform under an awarded contract to be identified prior to contract award for TWC approval. Substitutions of providers shall be submitted in writing for TWC approval during the term of the contract.

1.11 No Travel: TWC will not reimburse a Vendor for travel and expenses unless specifically provided for in the contract documents. In that event, such reimbursement will not exceed the state travel reimbursement rates and limits established by the then current General Appropriations Act.

GENERAL CONDITIONS

2.1 Damage to Grounds and Buildings (As applicable to the services/products): Vendor shall be financially responsible for any or all damage done by its employees, agents and subcontractors to TWC grounds and buildings. Vendor is responsible for the removal of all debris resulting from work performed under the contract.

2.2 Texas Public Information Act:

2.2.1 Information, documentation, and other material in connection with this solicitation or any resulting contract may be subject to public disclosure pursuant to Texas Government Code, Chapter 552 (Public Information Act).

2.2.2 All information submitted in response to the solicitation is subject to public disclosure pursuant to the Public Information Act. In the event of a request for information pertaining to the solicitation, TWC will comply with the provisions of the Public Information Act to protect the interests of the State of Texas. The Public Information Act allows the public to have access to information in the possession of a governmental body. Therefore, the Vendor must clearly identify any confidential or proprietary information on the page on which it appears in the solicitation response and reference the specific exception to disclosure in the Public Information Act that applies. Proprietary information identified by the Vendor in advance will be kept confidential to the extent permitted by state law. Any information not clearly identified as confidential or proprietary shall be deemed to be subject to disclosure pursuant to the Public Information Act.

2.2.3 All information, documentation, and other material in connection with the solicitation or any resulting contract will be retained by TWC for the period specified in the Records Retention Schedule created under Texas Government Code, Chapter 441. The information will not be returned to the Vendor who submitted it during the retention period.

2.2.4 Under Texas Government Code § 2252.907, Vendor is required to make any public information created or exchanged with the State pursuant to any contract with TWC, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to TWC.

2.3 Award of Contract (As applicable to the services/products):

2.3.1 Responding to a solicitation is an offer to contract with the State based upon the terms, conditions, and specifications contained in the solicitation. Submitted responses do not become contracts unless and until they are accepted, an award is made by TWC Procurement and HUB-Services, and a PO or a fully executed contract is issued to the Vendor.

2.3.2 TWC may negotiate price and terms with any and all Vendors, to accept or reject all or any part of a Vendor’s response, waive minor technicalities, to request Best and Final Offers from all or any Vendors, and make an award that represents Best Value to the agency or the State.

2.3.3 Subsequent to award, TWC may, at its sole option, request the Vendor to negotiate contract amendments or renewals as is determined to be in the best interest of the agency or the State.

2.3.4 Either party may provide written notice to the other party of a change of address of the party or to change the contact name and information. Amendments shall be in writing and signed by both parties.

2.3.5 If the solicitation leading to a contract allows non-competitive renewal, such renewal will be based on TWC's determination that the Vendor is in compliance with all terms of the contract, TWC's continuing need for the services, and available funding.

2.3.6 TWC may use a third party to negotiate price related to any Information Technology solicitation or contract.

2.3.7 TWC may make an award on the basis of low line item bid, low total of line items, or in any other combination that will serve the best interest of the State and to reject any and all bid items in the sole discretion of the State.

2.4 Changes in Ownership: During the term of the contract or any extension or renewal thereof, the Vendor shall notify TWC in writing of any substantial change in the ownership or control of the Vendor as soon as possible, but no later than thirty (60) days before its occurrence.

2.5 Vendor Assignments: No assignment is permitted by the Vendor without prior written consent of TWC. Any written request for assignment must be accompanied by written acceptance of the assignment by the assignee. Except where otherwise agreed in writing by TWC, assignment will not release Vendor from its obligations pursuant to the contract. TWC will comply with the provisions of Texas Government Code §2262.056, when applicable, by providing notice to the Legislative Budget Board of a proposed assignment prior to approval of the assignment. Contracted Vendors under a TWC Vocational Rehabilitation contract will notify TWC at least sixty (60) days before the intended effective date of any change in legal entity status, such as a change in ownership or control, name, legal status with the Texas Secretary of State, or Texas Identification Number issued by the Texas Comptroller of Public Accounts.

2.6 INDEMNIFICATION:

2.6.1 ACTS OR OMISSIONS: VENDOR SHALL INDEMNIFY AND HOLD HARMLESS TWC, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES ARISING OUT OF, OR RESULTING FROM ANY ACTS OR OMISSIONS OF THE VENDOR OR ITS AGENTS, EMPLOYEES, SUBCONTRACTORS, ORDER FULFILLERS, OR SUPPLIERS OF SUBCONTRACTORS IN THE EXECUTION OR PERFORMANCE OF THE CONTRACT AND ANY PURCHASE ORDERS ISSUED UNDER THE CONTRACT. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. VENDOR AND TWC AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. IF CONTRACTOR IS A PHYSICIAN OR PSYCHIATRIST, THE STATE OF TEXAS SHALL INDEMNIFY CONTRACTOR PURSUANT TO TEX. CIV. PRACT. & REM. CODE, CHAPTER 104.

2.6.2 VENDOR SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS TWC AND THE STATE OF TEXAS FROM AND AGAINST ANY AND ALL CLAIMS, VIOLATIONS, MISAPPROPRIATIONS OR INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS AND/OR OTHER INTANGIBLE PROPERTY, PUBLICITY OR PRIVACY RIGHTS, AND/OR IN CONNECTION WITH OR ARISING FROM: (1) THE PERFORMANCE OR ACTIONS OF VENDOR PURSUANT TO THIS CONTRACT; (2) ANY DELIVERABLE, WORK PRODUCT, CONFIGURED SERVICE OR OTHER SERVICE PROVIDED HEREUNDER; AND/OR (3) TWC’S AND/OR VENDOR’S USE OF OR ACQUISITION OF ANY REQUESTED SERVICES OR OTHER ITEMS PROVIDED TO TWC BY VENDOR OR OTHERWISE TO WHICH TWC HAS ACCESS AS A RESULT OF VENDOR’S PERFORMANCE UNDER THE CONTRACT. VENDOR AND TWC AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE, INCLUDING ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE TEXAS ATTORNEY GENERAL(OAG) WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM OAG. IN ADDITION, VENDOR WILL REIMBURSE TWC AND THE STATE OF TEXAS FOR ANY CLAIMS, DAMAGES, COSTS, EXPENSES OR OTHER AMOUNTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES AND COURT COSTS, ARISING FROM ANY SUCH CLAIM. IF TWC DETERMINES THAT A CONFLICT EXISTS BETWEEN ITS INTERESTS AND THOSE OF VENDOR OR IF TWC IS REQUIRED BY APPLICABLE LAW TO SELECT SEPARATE COUNSEL, TWC WILL BE PERMITTED TO SELECT SEPARATE COUNSEL AND VENDOR WILL PAY ALL REASONABLE COSTS OF TWC’S COUNSEL.

2.6.2.1 VENDOR SHALL HAVE NO LIABILITY UNDER THIS SECTION IF THE ALLEGED INFRINGEMENT IS CAUSED IN WHOLE OR IN PART BY: (1) USE OF THE PRODUCT OR SERVICE BY TWC FOR A PURPOSE OR IN A MANNER FOR WHICH THE PRODUCT OR SERVICE WAS NOT DESIGNED OR LICENSED, (2) ANY MODIFICATION MADE BY TWC TO THE PRODUCT WITHOUT VENDOR’S WRITTEN APPROVAL, OR (3)ANY INTELLECTUAL PROPERTY RIGHT OWNED BY OR LICENSED TO TWC,.

2.6.2.2 IF VENDOR BECOMES AWARE OF AN ACTUAL OR POTENTIAL CLAIM, OR TWC PROVIDES VENDOR WITH NOTICE OF AN ACTUAL OR POTENTIAL CLAIM, TWC MAY REQUIRE VENDOR AT VENDOR’S EXPENSE TO; (1) PROCURE FOR TWC THE RIGHT TO CONTINUE TO USE THE AFFECTED PORTION OF THE PRODUCT OR SERVICE, (2) MODIFY OR REPLACE THE AFFECTED PORTION OF THE PRODUCT OR SERVICE WITH FUNCTIONALITY EQUIVALENT OR SUPERIOR PRODUCT OR SERVICE SO THAT TWC’S USE IS NON-INFRINGING, OR (3) ACCEPT RETURN OF THE INFRINGING PRODUCT OR TERMINATION OF THE SERVICE AND REFUND ANY AMOUNTS PAID BY TWC WITH RESPECT TO THE INFRINGING PRODUCT OR SERVICE.

2.6.3 TAXES/WORKERS’ COMPENSATION/UNEMPLOYMENT INSURANCE – INCLUDING INDEMNITY:

2.6.3.1 VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THE CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR’S AND VENDOR’S EMPLOYEES’ TAXES OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THE CONTRACT. VENDOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE, AND WORKERS’ COMPENSATION. TWC SHALL NOT BE LIABLE TO THE VENDOR, ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS’ COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER.

2.6.3.2 VENDOR SHALL INDEMNIFY AND HOLD HARMLESS TWC, AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, AND/OR ASSIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEYS’ FEES, AND EXPENSES, RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR WORKERS’ COMPENSATION IN ITS PERFORMANCE UNDER THE CONTRACT. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. VENDOR AND TWC AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.

2.7 Vendor Performance: Under Texas Government Code §§2155.074, 2155.075, 2156.007, 2157.003 and 2157.125, Vendor performance may be used as a factor in the award.

2.8 Force Majeure: TWC may grant relief from performance of an awarded contract or PO, or extend a performance period, if the Vendor is prevented from compliance and performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault of the Vendor. If the Vendor requests the relief, the burden of proof for the need of such relief shall rest upon the Vendor, who must file a written request for such release or extension. If TWC grants such relief due to circumstances known by the agency, the agency must document such reasons in the contract file.

Vendor must provide TWC with proof of Force Majeure within ten (10) business days of Vendor’s failure to perform pursuant to the contract or otherwise waive Vendor’s right to a Force Majeure defense.

2.9 Dispute Resolution Procedures:

2.9.1 Procurement Disputes: Pursuant to Texas Government Code, § 2155.076, TWC has adopted rules for resolving vendor protests relating to the solicitation, evaluation or award of a contract for goods and/or services. See 40 TAC, Chapter 800, subchapter H. Such protests must be made via email to twcvendor@twc.texas.gov and/or mail and received in the Director of Business Operations’ office within ten (10) business days from the date the protestant knew or should have known of the of the occurrence of the action that is protested, but not later than ten (10) business days of the date of the announcement of the award. The protest must be in writing and contain:(1) the identifying name and number of the Solicitation being protested; (2) identification of the specific statute or regulation that the Protestant alleges has been violated; (3) a specific description of each act or omission alleged to have violated the statutory or regulatory provision identified above in (2) above; (4) a precise statement of the relevant facts including: (A) sufficient documentation to establish that the protest has been timely filed; and (B) a description of the resulting adverse impact to the Protestant; (5) a statement of the argument and authorities that the Protestant offers in support of the protest; (6) an explanation of the action the Protestant is requesting from the Agency; (7) a statement confirming that copies of the protest have been mailed or delivered to any other Interested Party known to the Protestant; and (8) the protest must be signed by an authorized representative for the Protestant and the signature notarized. TWC will make available to the protestor all requested documents not exempted from disclosure under Texas and federal law.

TWC will provide copies of these documents upon payment of the fees adopted by TWC for record duplication. The Director will issue the final written decision to the protestor. TWC may move forward with a Solicitation or contract award without delay, in spite of a timely filed protest, to protect the best interests of the Agency or the state.

2.9.2 Contract Disputes: Disputes arising under the contract shall be resolved in accordance with the dispute resolution process provided in Texas Government Code Chapter 2260.

2.10 Debt to the State: Vendor agrees that any payments due under the contract will be applied towards any debt including, but not limited to, delinquent taxes and child support that is owed to the State of Texas.

2.11 Hold-Over Contract Extension: In the event contract renewal negotiations are not completed prior to the contract expiration date, both parties agree that services shall be provided by the Vendor and accepted by TWC, subject to all original terms and conditions of the contract, for a period not to exceed ninety (90) days following the original contract expiration date. During the hold over extension period, service costs shall be provided at the pro-rated rates, as applicable, in effect immediately prior to expiration of the original contract period and all other terms and conditions shall remain in effect. TWC may terminate such hold over extension period by providing written notice of cancellation not less than ten (10) business days prior to the cancellation date.

2.12 Records Retention: Vendor and any subcontractor shall maintain and retain all records relating to contract performance including supporting fiscal documents that show that any payments under the contract were expended in accordance with the laws and regulations of the State of Texas, including, but not limited to, requirements of the Comptroller of the State of Texas and the State Auditor. Vendor shall maintain all such documents and other records relating to the contract and the State’s property for a period of seven (7) years after the contract expiration date or until all audit, claim, and litigation matters are resolved, whichever is later. If Vendor chooses not to preserve contracting information for the retention period required by this section, Vendor shall provide, at no cost to TWC, all contracting information related to the contract that is in the custody or possession of Vendor or any of its subcontractors.

2.13 Agency’s Right to Audit: Vendor and any subcontractor shall make available at reasonable times and upon reasonable notice, and for reasonable periods, all documents and other information related to this contract, including but not limited to work papers, reports, books, records, and supporting documents. Vendor and any subcontractors shall provide TWC with any information that TWC deems relevant to any investigation or audit. Vendor must retain all work and other supporting documents pertaining to this contract, for the purposes of inspecting, monitoring, auditing, or evaluating by TWC. For the purpose of this section, TWC’s right to audit extends to any agency of the Federal government or State of Texas authorized by law or TWC, including an investigation or audit by the State Auditor or the Comptroller General of the United States. (See Section 14 for additional TWC Monitoring terms and conditions.)

2.14 State Auditor: Pursuant to Texas Government Code §2262.154, the State Auditor may conduct an audit or investigation of any entity receiving funds from the State directly under the contract or indirectly through a subcontract under the contract. The acceptance of funds directly under the contract or indirectly through a subcontract under the contract acts as acceptance of the authority of the State Auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit committee, an entity that is the subject of an audit or investigation by the State Auditor must provide the State Auditor with access to any information the State Auditor considers relevant to the investigation or audit.

Vendor and any subcontractor shall cooperate with any authorized agents of the State of Texas and shall provide them with prompt access to all requested information and materials. Vendor’s failure to comply with this Section shall constitute a material breach of contract and shall authorize TWC and the State of Texas to immediately assess appropriate damages for such failure.

Vendor shall ensure that this provision concerning the State’s authority to audit funds received indirectly by subcontractors through Vendor and the requirement to cooperate is included in any subcontract it awards.

2.15 Limitation on TWC's Liability: TWC will not be liable for any incidental, indirect, special, or consequential damages under contract, Tort, (including negligence), or other legal theory. TWC's liability to Vendor under the contract will not exceed the total charges to be paid by TWC to Vendor under the contract.

2.16 State Ownership: The Parties agree that TWC will own all right, title and interest in and to the work products including deliverables, source and object code and documentation developed by the Vendor in connection with the contract.

2.16.1 All work products including deliverables, source and object code and documentation, in whole or in part, will be deemed works made for hire of TWC for purposes of copyright law and copyright will belong solely to TWC.

2.16.2 To the extent that any such work product or deliverable does not qualify as a work made for hire under applicable law, and to the extent that the deliverable or work product includes materials subject to copyright, patent, trade secret, or other proprietary right protection, Vendor agrees to assign, and hereby assigns, all right, title, and interest in and to the work products and deliverables, including without limitation all copyrights, inventions, patents, trade secrets, and other proprietary rights therein (including renewals thereof) to TWC.

2.16.3 Vendor will assist TWC or its nominees (including, but not limited to, the State of Texas) to obtain copyrights, trademarks, or patents for all such work products or deliverables in the United States and any other countries. Vendor agrees to execute all papers and to give all facts known to it necessary to secure United States or foreign country copyrights and patents, and to transfer to TWC all the right, title, and interest in and to such work products or deliverables. Vendor agrees to not assert any moral rights under applicable copyright law with regard to such work products and deliverables.

2.16.4 Vendor agrees to reproduce and include TWC's copyright and other proprietary notices and product identifications provided by Vendor on such copies, in whole or in part, or on any form of the work products or deliverables.

2.17 License: Pursuant to 2 C.F.R. §200.315, all appropriate State and Federal agencies will have a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, translate or otherwise use, and to authorize others to use for State or Federal purposes all materials, deliverables and work products, including software and modifications thereof, and associated documentation designed, developed, or installed with Federal Financial Participation under the contract, including, but not limited to, those materials covered by copyright, all source and object code, instructions, files, and documentation composing the system.

2.18 Most Favored Customer: If during the term of the contract, the Vendor enters into another contract with any customer for substantially similar services at prices more favorable than those provided to TWC, the contract may be amended at TWC’s direction to provide the more favorable prices to TWC.

2.19 Governing Law and Venue: The contract shall be governed, construed, and interpreted under Texas law, without regard to the conflicts of law provisions. Vendor agrees that proper venue for a claim arising under the contract shall be brought in a court of competent jurisdiction in Travis County, Texas.

2.20 Survival: Expiration or termination of the contract for any reason does not release Vendor from any liability or obligation set forth in the contract that is expressly stated to survive any such expiration or termination, that by its nature would be intended to be applicable following any such expiration or termination, or that is necessary to fulfill the essential purpose of the contract, including without limitation the provisions regarding warranty, indemnification, transition, records, audit, property rights, dispute resolution, invoice, fees verification, confidentiality, and rights and remedies upon termination.

2.21 Severability: If any provision of the contract is construed to be illegal or invalid, such provision shall be deemed stricken and deleted to the same extent and effect as if never incorporated into the contract, but all other provisions shall remain in full force and effect.

2.22 Block Terrorism: TWC and the Vendor must adhere to the directions in the President’s Executive Order (EO) 13224, Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism.