ESBD_405517_1743176609241_TDCJ Required Contract Clauses.pdf

696-5-IW214628 Exhibit J.1

Texas Department of Criminal Justice Required Purchase Order / Contract Clauses

In this document, the terms Contractor and Vendor, when referring to the following affirmations (whether framed as certifications, representations, warranties, or in other terms) refer to Respondent, and the affirmations apply to all Respondents regardless of their business form (e.g., individual, partnership, corporation).

Respondent represents and warrants all certifications, representations, warranties, and other provisions in this Affirmations and Solicitation Acceptance apply to Respondent and all of Respondent's principals, officers, directors, shareholders, partners, owners, agents, employees, subcontractors, independent contractors, and any other representatives who may provide services under, who have a financial interest in, or otherwise are interested in this Solicitation or any Contract resulting from this Solicitation.

Respondent must provide information, as applicable, and affirms, without exception, as follows:

1. Terms and Conditions Attached to Response. Any terms and conditions attached to a Response will not be considered unless specifically referred to in the Response.

2. Complete and Accurate Information. Respondent represents and warrants all statements and information provided to the TDCJ are current, complete, and accurate. This includes all statements and information in this Solicitation Response.

3. Public Information Act. Respondent understands the TDCJ will comply with the Texas Public Information Act (Chapter 552 of the Texas Government Code) as interpreted by judicial rulings and opinions of the Attorney General of the State of Texas. Information, documentation, and other material prepared and submitted in connection with this Solicitation, or any resulting Contract may be subject to public disclosure pursuant to the Texas Public Information Act. In accordance with Section 2252.907 of the Texas Government Code, Respondent is required to make any information created or exchanged with the State pursuant to the Contract, 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 the State.

4. Contracting Information Responsibilities. Respondent represents and warrants it will comply with the requirements of Section 552.372(a) of the Texas Government Code. Except as provided by Section 552.374(c) of the Texas Government Code, the requirements of Subchapter J (Additional Provisions Related to Contracting Information), Chapter 552 of the Government Code, may apply to the Contract and the Respondent agrees the Contract can be terminated if the Respondent knowingly or intentionally fails to comply with a requirement of that subchapter.

5. Assignment. Respondent shall not assign its rights under the Contract or delegate the performance of its duties under the Contract without prior written approval from the TDCJ. Any attempted assignment in violation of this provision is void and without effect.

6. Texas Bidder. Respondent certifies that if a Texas address is shown as the address of the Respondent on this Response, the Respondent qualifies as a Texas Bidder as defined in Section 2155.444(c) of the Texas Government Code.

7. Dealings with Public Servants. Respondent has not given, has not offered to give, and does not intend to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with this Solicitation Response, this Solicitation, or any Contract resulting from this Solicitation.

8. Prior Disaster Relief Contract Violation. Sections 2155.006 and 2261.053 of the Texas Government Code, prohibit state agencies from accepting a Response or awarding a Contract that includes proposed financial participation by a person who, in the past five years, has been convicted of violating a federal law or assessed a penalty in connection with a contract involving relief for Hurricane Rita, Hurricane Katrina, or any other disaster, as defined by Section 418.004 of the Texas Government Code, occurring after September 24, 2005. Under Sections 2155.006 and 2261.053 of the Texas Government Code, Respondent certifies the individual or business entity named in this Response or Contract is not ineligible to receive the specified Contract and acknowledges this Contract may be terminated and payment withheld if this certification is inaccurate.

9. Child Support Obligation. Under Section 231.006(d) of the Texas Family Code regarding child support, Respondent certifies the individual or business entity named in this Response is not ineligible to receive the specified payment and acknowledges the Contract may be terminated and payment may be withheld if this certification is inaccurate. Furthermore, any Respondent subject to Section 231.006 of the Texas Family Code, must include in the Response the names and social security numbers of each person with at least 25% ownership of the business entity submitting the Response. Enter name and social security numbers for each person. This information must be provided prior to Contract award.

Name:

SSN:

FEDERAL PRIVACY ACT NOTICE: This notice is given pursuant to the Federal Privacy Act.

Disclosure of requested social security numbers is required under Section 231.006(c) and Section 231.302(c)(2) of the Texas Family Code. The social security numbers will be used to identify persons that may owe child support and will be kept confidential to the fullest extent permitted by law. If submitted by email, Responses containing social security numbers must be encrypted. Failure by a Respondent to provide or encrypt the social security numbers as required may result in disqualification of the Respondent's Response.

10. Suspension and Debarment. Respondent certifies that it and its principals are not suspended or debarred from doing business with the state or federal government as listed on the State of Texas Debarred Vendor List maintained by the Texas Comptroller of Public Accounts and the System for Award Management (SAM) maintained by the General Services Administration.

11. Excluded Parties. Respondent certifies that it is not listed in the prohibited vendors list authorized by Executive Order Number 13224, “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism,” published by the United States Department of the Treasury, Office of Foreign Assets Control.

12. Foreign Terrorist Organizations. Respondent represents and warrants that it is not engaged in business with Iran, Sudan, or a foreign terrorist organization, as prohibited by Section 2252.152 of the Texas Government Code and acknowledges this Contract may be terminated and payment withheld if this certification is inaccurate.

13. Executive Head of a State Agency. In accordance with Section 669.003 of the Texas Government Code, relating to contracting with the executive head of a state agency, Respondent certifies it is not

(1) the executive head of the TDCJ, (2) a person who at any time during the four years before the date of the Contract was the executive head of the TDCJ, or (3) a person who employs a current or former executive head of the TDCJ.

14. Human Trafficking Prohibition. Under Section 2155.0061 of the Texas Government Code, the Respondent certifies the individual or business entity named in this Response or Contract is not ineligible to receive the specified Contract and acknowledges this Contract may be terminated and payment withheld if this certification is inaccurate.

15. Debts and Delinquencies. Respondent agrees that any payments due under the Contract resulting from this Solicitation, shall be applied towards any debt or delinquency that is owed to the State of Texas.

16. Lobbying Prohibition. Respondent represents and warrants that Agency’s payments to Respondent and Respondent's receipt of appropriated or other funds under any Contract resulting from this Solicitation, are not prohibited by Sections 556.005 or 556.0055 of the Texas Government Code.

17. Buy Texas. Respondent agrees to comply with Section 2155.4441 of the Texas Government Code, requiring the purchase of products and materials produced in the State of Texas in performing service contracts. In performing Services under this Contract, the Contractor shall purchase products and materials produced in the State of Texas when they are available at a price and time comparable to products and materials produced outside of Texas.

18. Disaster Recovery Plan. Respondent agrees that upon request of the TDCJ, Respondent shall provide copies of its most recent business continuity and disaster recovery plans.

19. Computer Equipment Recycling Program. If Respondent is submitting a Response for the purchase or lease of computer equipment, then Respondent certifies it is in compliance with Subchapter Y, Chapter 361 of the Texas Health and Safety Code related to the Computer Equipment Recycling Program and the Texas Commission on Environmental Quality rules in 30 TAC Chapter 328.

20. Cybersecurity Training. Respondent represents and warrants it will comply with the requirements of Section 2054.5192 of the Texas Government Code relating to cybersecurity training and required verification of completion of the training program.

21. Restricted Employment for Certain State Personnel. Respondent acknowledges that, pursuant to Section 572.069 of the Texas Government Code, a former state officer or employee of a state agency who during the period of state service or employment participated on behalf of a state agency in a procurement or contract negotiation involving Respondent may not accept employment from Respondent before the second anniversary of the date the Contract is signed, or the procurement is terminated or withdrawn. This certification only applies to former state officers or employees whose state service or employment ceased on or after September 1, 2015.

22. No Conflicts of Interest. Respondent represents and warrants it has no actual or potential conflicts of interest in providing the requested goods or services to the TDCJ under this Solicitation and any resulting Contract and that Respondent’s provision of the requested goods and/or services under this Solicitation and any resulting Contract will not constitute an actual or potential conflict of interest or reasonably create an appearance of impropriety.

23. Dispute Resolution. Any dispute arising under this Contract, which is not disposed of by mutual agreement between the TDCJ and the Respondent shall be resolved in accordance with Texas Government Code, Chapter 2260. At all times during the dispute resolution process, the Respondent shall continue providing services in a diligent manner and without delay, according to all applicable provisions of this Contract.

24. Protest Procedures. Any actual or prospective bidder who is aggrieved in connection with this IFB, evaluation, or award of any contract resulting from this IFB, may formally protest as provided in TDCJ’s rules found in Texas Administrative Code, Title 37, Part 6, Chapter 155, Subchapter D, Rule

155.41. r

25. Excess Obligations Prohibited. The Contract is subject to termination or cancellation, without penalty to the TDCJ, either in whole or in part, subject to the availability of state funds. The TDCJ is a state agency whose authority and appropriations are subject to actions of the Texas Legislature. If the TDCJ becomes subject to a legislative change, revocation of statutory authority, or lack of appropriated funds which would render either the TDCJ’s or Respondent’s delivery or performance under the Contract impossible or unnecessary, the Contract will be terminated or cancelled and be deemed null and void.

In the event of a termination or cancellation under this Section, the TDCJ will not be liable to the Respondent for any damages, that are caused or associated with such termination, or cancellation, and the TDCJ will not be required to give prior notice.

26. Governing Law. The Contract shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions. The venue of any suit arising under the Contract is fixed in any court of competent jurisdiction of Travis County, Texas, unless the specific venue is otherwise identified in a statute which directly names or otherwise identifies its applicability to the TDCJ.

27. Antitrust. The undersigned affirms under penalty of perjury of the laws of the State of Texas that (a) in connection with this Response, neither I nor any representative of the Respondent has violated any provision of the Texas Free Enterprise and Antitrust Act, Texas Business and Commerce Code, Chapter 15; (b) in connection with this Response, neither I nor any representative of the Respondent has violated any federal antitrust law; and (c) neither I nor any representative of the Respondent has directly or indirectly communicated any of the contents of this Response to a competitor of the Respondent or any other company, corporation, firm, partnership or individual engaged in the same line of business as the Respondent.

28. Indemnification Acts or Omission. THE RESPONDENT SHALL DEFEND, INDEMNIFY AND

HOLD HARMLESS THE STATE OF TEXAS, THE TDCJ, THE TBCJ, 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 RESPONDENT 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 THE CONTRACTOR

WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES

ARE NAMED DEFENDANTS IN ANY LAWSUIT AND THE RESPONDENT MAY NOT

AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE

FROM THE OFFICE OF THE ATTORNEY GENERAL. THE RESPONDENT AND THE

DEPARTMENT AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF

ANY SUCH CLAIM.

THE TDCJ SHALL NOT INDEMNIFY RESPONDENT OR ANY OTHER ENTITY UNDER

THE CONTRACT.

29. Infringements. RESPONDENT SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS

AGENCY 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 RESPONDENT PURSUANT TO THIS CONTRACT; (2) ANY DELIVERABLE,

WORK PRODUCT, CONFIGURED SERVICE OR OTHER SERVICE PROVIDED

HEREUNDER; AND/OR (3) AGENCY’S AND/OR RESPONDENT’S USE OF OR

ACQUISITION OF ANY REQUESTED SERVICES OR OTHER ITEMS PROVIDED TO

AGENCY BY RESPONDENT OR OTHERWISE TO WHICH AGENCY HAS ACCESS AS A

RESULT OF RESPONDENT’S PERFORMANCE UNDER THE CONTRACT. RESPONDENT

AND AGENCY AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF

ANY SUCH CLAIM. RESPONDENT SHALL BE LIABLE TO PAY ALL COSTS OF

DEFENSE, INCLUDING ATTORNEYS’ FEES. THE DEFENSE SHALL BE COORDINATED

BY RESPONDENT WITH THE OFFICE OF THE TEXAS ATTORNEY GENERAL(OAG)

WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND

RESPONDENT MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING

THE CONCURRENCE FROM OAG. IN ADDITION, RESPONDENT WILL REIMBURSE

AGENCY 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 AGENCY DETERMINES THAT A

CONFLICT EXISTS BETWEEN ITS INTERESTS AND THOSE OF RESPONDENT OR IF

AGENCY IS REQUIRED BY APPLICABLE LAW TO SELECT SEPARATE COUNSEL,

AGENCY WILL BE PERMITTED TO SELECT SEPARATE COUNSEL AND RESPONDENT

WILL PAY ALL REASONABLE COSTS OF AGENCY’S COUNSEL.

A. Vendor shall have no liability under this section if the alleged infringement is caused in whole or in part by: (i) use of the product or service for a purpose or in a manner for which the product or service was not designed, (ii) any modification made to the product without Vendor’s written approval, (iii) any modifications made to the product by the Vendor pursuant to Customer’s specific instructions, (iv) any intellectual property right owned by or licensed to Customer, or (v) any use of the product or service by Customer that is not in conformity with the terms of any applicable license agreement.

B. If Vendor becomes aware of an actual or potential claim, or Customer provides Vendor with notice of an actual or potential claim, Vendor may (or in the case of an injunction against Customer, shall), at Vendor’s sole option and expense; (i) procure for the Customer the right to continue to use the affected portion of the product or service, or (ii) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that Customer’s use is non- infringing.

The parties agree that the terms, covenants and provisions of paragraphs 27, and 28, shall survive the termination of this purchase order.

30. E-Verify. Respondent certifies that for contracts for services, Respondent shall utilize the U.S.

Department of Homeland Security’s E-Verify system during the term of the Contract to determine the eligibility of:

1. all persons employed by the Respondent to perform duties within Texas; and

2. all persons, including subcontractors, assigned by the Respondent to perform work pursuant to the Contract within the United States of America.

The Contractor shall provide, upon request of the TDCJ, an electronic or hardcopy screenshot of the confirmation or tentative non-confirmation screen containing the E-Verify case verification number for attachment to the Form I-9 for the three most recent hires that match the criteria above, by the Contractor, and the Contractor’s subcontractors, as proof that this provision is being followed. If this certification is falsely made, the Contract may be immediately terminated, at the discretion of the state and at no fault to the state, with no prior notification. The Contractor shall also be responsible for the costs of any re-solicitation that the state must undertake to replace the terminated Contract.

31. Former Agency Employees. If this Solicitation is for an employment contract, a professional services contract or a consulting services contract under Chapter 2254 of the Texas Government Code, Respondent represents and warrants that neither Respondent nor any of Respondent’s employees including, but not limited to, those authorized to provide services under the Contract, were former employees of the TDCJ during the twelve (12) month period immediately prior to the date of the execution of the Contract.

32. Disclosure of Prior State Employment – Consulting Services. In accordance with Section 2254.033 of the Texas Government Code, relating to consulting services, Respondent certifies it does not employ an individual who has been employed by the TDCJ or another agency at any time during the two years preceding the submission of the Response or, in the alternative, Respondent has disclosed in its Response the following:

1. The nature of the previous employment with the TDCJ or the other State of Texas agency:

2. The date the employment was terminated and the reason for the termination:

3. The annual rate of compensation for the employment at the time of its termination:

33. Entities that Boycott Israel. Pursuant to Section 2271.002 of the Texas Government Code, Respondent certifies that either (1) it meets an exemption criterion under Section 2271.002; or (2) it does not boycott Israel and will not boycott Israel during the term of the Contract resulting from this Solicitation. If Respondent refuses to make that certification, Respondent shall state here any facts that make it exempt from the boycott certification:

34. Abortion Funding Limitation. Respondent understands, acknowledges, and agrees that, pursuant to Article IX of the General Appropriations Act (the Act), to the extent allowed by federal and state law, money appropriated by the Texas Legislature may not be distributed to any individual or entity that, during the period for which funds are appropriated under the Act:

1. Performs an abortion procedure that is not reimbursable under the state’s Medicaid program;

2. Is commonly owned, managed, or controlled by an entity that performs an abortion procedure that is not reimbursable under the state’s Medicaid program; or

3. Is a franchise or affiliate of an entity that performs an abortion procedure that is not reimbursable under the state’s Medicaid program. The provision does not apply to a hospital licensed under Chapter 241, Health and Safety Code, or an office exempt under Section 245.004(2), Health and Safety Code. Respondent represents and warrants that it is not ineligible, nor will it be ineligible during the term of the Contract resulting from this Solicitation, to receive appropriated funding pursuant to Article IX.

35. Funding Eligibility. Respondent understands, acknowledges, and agrees that, pursuant to Chapter

2272 (eff. Sept. 1, 2021, Ch. 2273) of the Texas Government Code, except as exempted under that Chapter, the TDCJ cannot contract with an abortion provider or an affiliate of an abortion provider.

Respondent certifies it is not ineligible to contract with the TDCJ under the terms of Chapter 2272 (eff.

Sept. 1, 2021, Ch. 2273) of the Texas Government Code. If Respondent refuses to make that certification, Respondent shall state here any facts that make it exempt from the certification:

36. Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment (2 CFR 200.216). Respondent certifies the individual or business entity named in this Response or Contract is not ineligible to receive the specified Contract or funding pursuant to 2 CFR 200.216.

37. Financial Participation Prohibited. Pursuant to Section 2155.004(a) of the Texas Government Code, Respondent certifies that neither Respondent nor any person or entity represented by Respondent has received compensation from Agency to participate in the preparation of the specifications or solicitation on which this Response or contract is based. Under Section 2155.004(b) of the Texas Government Code, Respondent certifies that the individual or business entity named in this Response or contract is not ineligible to receive the specified contract and acknowledges that the contract may be terminated, and payment withheld if this certification is inaccurate.

38. COVID-19 Vaccine Passports. Pursuant to Texas Health and Safety Code, Section 161.0085(c), Respondent certifies it does not require its customers to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the Respondent’s business. The Respondent acknowledges such a vaccine or recovery requirement would make Respondent ineligible for a state-funded contract.

39. Energy Company Boycotts. If Respondent is required to make a verification pursuant to Section

2276.002 of the Texas Government Code, Respondent verifies Respondent does not boycott energy companies and will not boycott energy companies during the term of the Contract. If Respondent does not make that verification, Respondent must so indicate in its Response and state why the verification is not required.

40. Entities that Discriminate Against Firearm and Ammunition Industries. If Respondent is required to make a verification pursuant to Section 2276.002 of the Texas Government Code (relating to prohibition on contracts with companies that discriminate against firearm and ammunition industries), Respondent verifies it (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association and (2) will not discriminate during the term of the Contract against a firearm entity or firearm trade association. If the Respondent does not make that verification, Respondent must state here why the verification is not required:

41. State Auditor’s Right to Audit. Pursuant to Section 2262.154 of the Texas Government Code, the state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under any contract or indirectly through a subcontract under the contract. The acceptance of funds by the Respondent or any other entity or person 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, the Respondent or other 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. Respondent shall ensure that this paragraph concerning the authority to audit funds received indirectly by subcontractors through the contract and the requirement to cooperate is included in any subcontract it awards.

42. Critical Infrastructure. Pursuant to Texas Government Code, Section 2275.0102, Respondent certifies neither it nor its parent company, nor any affiliate of Respondent or its parent company, is: (1) majority owned or controlled by citizens or governmental entities of China, Iran, North Korea, Russia, or any other country designated by the Governor under Texas Government Code, Section 2275.0103, or (2) headquartered in any of those countries.

43. Enforcement of Certain Federal Firearms Laws Prohibited. In accordance with House Bill 957, Acts 2021, 87th Leg., R.S., if Texas Government Code, Section 2.101 is applicable to the Respondent, the Respondent certifies it is not ineligible to receive state grant funds pursuant to Texas Government Code, Section 2.103.

44. Permits and Licenses. Respondent represents and warrants it will comply with all applicable laws and maintain all permits and licenses required by applicable city, county, state, and federal rules, regulations, statutes, codes, and other laws that pertain to any Contract resulting from this Solicitation.

45. False Statements. Respondent represents and warrants all statements and information prepared and submitted in this document are current, complete, true, and accurate. Submitting a Response with a false statement or material misrepresentations made during the performance of a contract is a material breach of contract and may void the submitted Response and any resulting contract.

46. Artificial Intelligence. The contractor agrees not to use any artificial intelligence in the performance of this contract without prior written consent of the TDCJ.

47. Recycled Products. Any product(s) being bid on this solicitation containing recycled material, whether post-consumer or pre-consumer, or is a product that has been remanufactured, rebuilt, or otherwise restored to a like new condition, shall be indicated as such on the appropriate line items as having either a recycled content or is a remanufactured product.

48. Material Data Safety Sheets. When applicable, Material Safety Data Sheets are to be provided with each shipment.

49. Signature Authority. By submitting this Response, the Respondent represents and warrants the individual submitting this document and the documents made part of this Response is authorized to sign such documents on behalf of the Respondent and to bind the Respondent under any Contract that may result from the submission of this Response.

Respondent represents and certifies each of the above numbered statements, except to the extent that its Response specifically identifies one or more of the statements and describes each fact and circumstance which prevent it from making the representation and certification. Furthermore, Respondent promises to promptly notify the Comptroller if any of these representations or certifications are no longer true. The Respondent makes the foregoing Representations and Certifications as part of its Response.