ESBD_428615_1750165975646_Terms & Cond.pdf

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

REQUEST FOR OFFER TERMS AND CONDITIONS

ITEMS BELOW APPLY TO AND BECOME A PART OF OFFER.

ANY EXCEPTIONS THERETO MUST BE IN WRITING.

make an award on the basis of low line item offer, Rev. 03/07/2023 Page 1 of 5

1. Offer Requirements:

1.1 Offers must comply with all rules, regulations and

statutes relating to purchasing in the State of

Texas in addition to the requirements of this form.

1.2 Offers should be submitted on this form. Offers

must price per unit shown. Unit prices shall govern in the event of extension errors. If a price quotation is submitted as part of the offer, the quotation must be referenced on the offer document and signed by the respondent to establish formal linkage to the offer.

1.3 Offers must be time stamped at the office

designated in the solicitation on/or before the hour and date specified for the offer opening.

Any offer received at the designated location after the exact time specified will not be considered unless TDCJ determines that it was properly addressed and in the possession of TDCJ prior to the specified time but was late due to mishandling by the agency.

1.4 Late and/or unsigned offers will not be considered

under any circumstances. Person signing offer must have the authority to bind the firm in a contract.

1.5 Quote F.O.B. destination, freight prepaid and

allowed unless otherwise stated within the specifications.

1.6 Offer prices are requested to be firm for TDCJ

acceptance for 90 days from offer opening date.

“Discount from list” offers are not acceptable unless requested. An offer for an early payment discount may be considered in making an award.

Cash discounts offered will be taken if earned.

1.7 Offeror should enter Texas Identification Number

System (T.I.N.S.) number, full firm name and address of respondent on the face of this form.

Enter in the space provided, if not shown.

Additionally, firm name should appear on each continuation page of an offer, in the block provided in the upper right hand corner. The

Texas ID Number is the payee identification number assigned and used by the Comptroller of

Public Accounts of Texas to process payment for goods and services. If this number is not known, please visit https://fmx.cpa.texas.gov/fm/pubs/payment/pay_ pro_pol/?s=ppp_forms&p=app_tin to set up a

Texas Identification Number:

In an effort to minimize identity theft, every company MUST have an Employer Identification

Number (EIN), also known as a federal tax identification number prior to award of a contract.

For information on obtaining your EIN, you may call 800-829-4933 or visit the following website:

http://www.irs.gov/businesses/.

1.8 Offers are subject to negotiation.

1.9 Purchases made for State use are exempt from the

State Sales tax and Federal Excise tax. Do not include tax in offer. Excise Tax Exemption

Certificates are available upon request.

1.10 Award Notice: The State reserves the right to

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 offer items at the sole discretion of the State. The State also reserves the right to accept or reject all or any part of any offer, waive minor technicalities and award the offer to best serve the interests of the State.

Any contract may also be extended up to three months at the sole discretion of the State.

1.11 Consistent and continued tie bidding could cause

rejection of offers by the TDCJ and/or investigation for antitrust violations.

2. Specification:

2.1 Catalogs, brand names or manufacturer’s

references are descriptive only, and indicate type and quality desired. Offers on brands of like nature and quality will be considered unless advertised as a proprietary purchase under

Government Code, Title 10, Subtitle D, Sec.

2155.067. If offering on other than reference

specification(s), offer should show manufacturer, brand, or trade name, and other description of product offered. If other than brand(s) specified is offered, illustrations and complete description of product offered are requested to be made part of the offer. Failure to take exception to specifications or reference data will require offeror to furnish specified brand names, numbers, etc.

2.2 Unless otherwise specified, items offered shall be

new, unused, not refurbished, and of current production.

2.3 All electrical items must meet all applicable

OSHA standards and regulations, and bear the appropriate listing from UL, FMRC or NEMA.

2.4 Samples, when requested, must be furnished free

of expense to the State. If not destroyed in examination, they will be returned to the respondent, on request, at respondent’s expense.

Each sample should be marked with respondent’s name and address, and offer number. Do not enclose in or attach offer to sample.

2.5 Any oral statement or representation will not bind

the State contrary to the written specifications of the Request for Offer (RFO).

2.6 Manufacturer’s standard warranty shall apply

unless otherwise stated in the RFO.

3. Tie Offers:

Awards will be made in accordance with 34

TAC Rules 20.207 (c) (2) and 20.306 (preferences).

4. Delivery:

4.1 Show number of days required to place material

in TDCJ's receiving location under normal conditions. Delivery days means calendar days, unless otherwise specified. Failure to state delivery time obligates respondent to delivery in

14 calendar days. Unrealistic delivery promises may cause offer to be disregarded.

4.2 If delay is foreseen, vendor shall give written

notice to the TDCJ. Vendor must keep the TDCJ advised at all times of status of order. Default in promised delivery (without accepted reasons) or failure to meet specifications authorizes the TDCJ to purchase the goods and services of this RFO elsewhere and charge any increased costs for the goods and services, including the cost of rebidding, to the respondent.

4.3 No substitutions permitted without written

approval of the TDCJ Contracts and Procurement

Department.

4.4 Delivery shall be made during normal working

hours only, unless prior approval has been obtained from the TDCJ.

5. Inspection And Tests:

All goods will be subject to inspection and test by the State. Authorized TDCJ personnel shall have access to supplier’s place of business for the purpose of inspecting merchandise. Tests shall be performed on samples submitted with the offer or on samples taken from regular shipment. All costs shall be borne by the vendor in the event products tested fail to meet or exceed all conditions and requirements of the specification. Goods delivered and rejected in whole or in part may, at the State’s option, be returned to the vendor or held for disposition at vendor’s expense.

Latent defects may result in revocation of acceptance.

6. Award of Contract:

6.1 A response to this RFO is an offer to contract

based upon the terms, conditions and specifications contained herein. Offers do not become contracts until they are accepted through a purchase order. The contract shall be governed, construed and interpreted under the laws of the

State of Texas as the same may be amended from time to time. The factors listed in Texas

Government Code, Title 10, Subtitle D, Section 2157.003, 2155.074 and Section 2156.007 shall also be considered in making an award when specified. Any legal actions must be filed in

Travis County, Texas.

6.2 The TDCJ award policy shall consist of, but not

be limited to, the following factors in combination, but not necessarily in their order of importance:

A. Prices;

B. Offerors previous record of performance and service;

C. Quality and conformance to specification;

D. Any other best value factors so indicated.

7. Advertising of Award

The awarded vendor agrees not to refer to awards in commercial advertising in such a manner as to state or imply that the product or service provided is endorsed or preferred by the TDCJ or is considered by the TDCJ to be superior to other products or service

8. Payment:

Payment shall be made thirty calendar days after the later of (1) the date an uncontested invoice is received,

(2) the date goods are received, and (3) the date services are completed. Refer to Texas Government Code, Chapter 2251.

9. Vendor Maintenance Direct Deposit and Substitute

W-9 Form (Electronic Funds Transfer):

Government Code 403.016 (c) (3) encourages state agencies to transmit payments to vendors through electronic funds transfer (Direct Deposit). To set up your account, contact agency Accounts Payable

Branch at (936) 437-8761 or (936) 437-6357.

Regardless as to whether Direct Deposit is chosen, the awarded vendor shall submit a completed Vendor

Maintenance Direct Deposit and Substitute W-9 Form

Enter Federal Employer’s Identification Number https://fmx.cpa.texas.gov/fm/pubs/payment/pay_pro_pol/?s=ppp_forms&p=app_tin https://fmx.cpa.texas.gov/fm/pubs/payment/pay_pro_pol/?s=ppp_forms&p=app_tin http://www.irs.gov/businesses/

ITEMS BELOW APPLY TO AND BECOME A PART OF OFFER.

ANY EXCEPTIONS THERETO MUST BE IN WRITING.

Rev. 03/07/2023 Page 2 of 5 to TDCJ Accounts Payable. Vendors who have already submitted a form for another separate purchase order are not required to submit another form. The form and instructions are found at the following link on the TDCJ website:

http://www.tdcj.texas.gov\divisions\bfd.\acct_accts_p ay.html. To enroll for advance notification of electronic funds transfer to your account, please contact the number listed above. Payment information may be obtained by calling the Comptroller of Public

Accounts toll free at (800) 531-5441, ext. 3-3660 or in

Austin, Texas, call (512) 463-3660 or to receive via fax, call (512) 936-3461 or via the Internet at https://fmx.cpa.state.tx.us/fm/payment/index.php.

Vendors may select Option 3 (PIN not required) and enter their vendor identification number and 696 for the agency number.

10. Shipping and Invoice Instructions:

Failure to follow these shipping and invoice instructions may result in merchandise being rejected at the receiving dock and returned to the vendor without notice.

Shipping Instructions:

1. Ensure items(s) is sent to the correct unit/department within the TDCJ as listed on the purchase order.

2. Do not over ship. Overages shall be returned at the vendor’s expense unless items are of indeterminable quantity such as sand or gravel.

3. Ship individual line items complete.

4. Each part shipped shall have a part number or be tagged with a part number as it appears on the purchase order. If items are shipped without a part number, they will be returned to the vendor at vendor’s expense.

5. Include or mark purchase order numbers on all packing slips, cartons, packages, bundles, etc.

Invoicing Instructions:

1. The invoice must be itemized with the description, unit price, unit of measure and extension exactly as listed on the purchase order.

2. Only items listed on the purchase order may be billed and paid for by the TDCJ.

3. Any changes to the purchase order are only valid upon receipt of a purchase order change notice

(POCN) from the authorized purchaser.

4. Invoices must reference the purchase order number. Only one purchase order number on an invoice. (Purchase order number always begins with an “E”, example – EX000123)

5. Vendor must supply a valid payee identification number (PIN) on each invoice.

6. Invoices must be sent to Accounts Payable, P.O.

Box 4018, Huntsville, TX 77342-4018. *Only discounted invoices may be emailed.

7. Discounted invoices may be emailed to tdcj.ap-invsvs@tdcj.texas.gov.

8. Submit separate invoices for each shipment/per location.

11. Indemnification

11.1 Acts or Omissions

Vendor shall defend, indemnify, and hold harmless the

State of Texas and Customers, 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 THE CUSTOMER AGREE TO

FURNISH TIMELY WRITTEN NOTICE TO EACH

OTHER OF ANY SUCH CLAIM.

11.2 Infringements

A. Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR

EMPLOYEES, AGENTS,

REPRESENTATIVES, CONTRACTORS,

ASSIGNEES, AND/OR DESIGNEES from any and all third party claims involving infringement of United States patents, copyrights, trade and service marks, and any other intellectual or intangible property rights in connection with the

PERFORMANCES OR ACTIONS OF

VENDOR PURSUANT TO THIS

CONTRACT. VENDOR AND THE

CUSTOMER 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

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.

B. 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.

C. 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.

11.3 The parties agree that the terms, covenants and

provisions of paragraphs 11.1, and 11.2, shall survive the termination of this purchase order.

12. Vendor Assignments:

Vendor hereby assigns to TDCJ any and all claims for overcharges associated with this contract arising under the antitrust laws of the United States 15 U.S.C.A.

Section 1, et seq. (1973), and the antitrust laws of the

State of Texas, TEX. Bus. & Comm. Code Ann. Sec.

15.01 et seq. (1967).

13. Recycled Products:

Any product(s) being offered 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.

14. Material Safety Data Sheets:

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

15. Electronic and Information Resources Accessibility

Standards, as required by 1 TAC Chapter 213:

15.1 State agencies shall procure products which

comply with the State of Texas Accessibility requirements for Electronic and Information

Resources specified in 1 TAC Chapter 213 when such products are available in the commercial marketplace or when such products are developed in response to a procurement solicitation.

15.2 Vendor shall provide the TDCJ with the URL to

its Voluntary Product Accessibility Template

(VPAT) for reviewing compliance with the State of Texas Accessibility requirements (based on the federal standards established under Section

508 of the Rehabilitation Act), or indicate that the product/service accessibility information is available from the General Services’ Administration “Buy Accessible Wizard”

(http://www.buyaccessible.gov). Vendors not listed with the “Buy Accessible Wizard” or supplying a URL to their VPAT must provide the TDCJ with a report that addresses the same accessibility criteria in substantively the same format. Additional information regarding the “Buy Accessible Wizard” or obtaining a copy of the VPAT is located at http://www.section508.gov/

16. E-Verify System

The TDCJ shall require the following as a condition of all service contracts:

By entering into this Contract, the Contractor certifies and ensures that it utilizes and will continue to utilize, for the term of this Contract, the U.S. Department of

Homeland Security’s E-Verify system to determine the eligibility of:

1. All persons employed to perform duties within

Texas, during the term of the Contract; and

2. All persons (including subcontractors) assigned by the Respondent to perform work pursuant to http://www.tdcj.texas.gov/divisions/bfd./acct_accts_pay.html http://www.tdcj.texas.gov/divisions/bfd./acct_accts_pay.html https://fmx.cpa.state.tx.us/fm/payment/index.php mailto:tdcj.ap-invsvs@tdcj.texas.gov mailto:tdcj.ap-invsvs@tdcj.texas.gov http://www.buyaccessible.gov/ http://www.section508.gov/

ITEMS BELOW APPLY TO AND BECOME A PART OF OFFER.

ANY EXCEPTIONS THERETO MUST BE IN WRITING.

child support, the respondent certifies that the

Rev. 03/07/2023 Page 3 of 5 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 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.

17. Respondent Affirmation:

Signing this offer with a false statement is a material breach of contract and shall void the submitted offer or any resulting contracts, and the respondent shall be removed from all RFO’s. By signature here on affixed, the respondent hereby certifies that:

17.1 Suspension, Debarment, and Terrorism:

Respondent certifies that the responding entity and its principals are eligible to participate in this transaction and have not been subjected to suspension, debarment, or similar ineligibility determined by any federal, state or local governmental entity and that respondent is in compliance with the State of Texas statutes and rules relating to procurement and that respondent is not listed on the Federal

Government’s Terrorism Watch List as described in Executive Order 13224. Entities ineligible for federal procurement are listed at https://www.sam.gov.

17.2 The respondent has not given, offered to give, nor intends 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 the submitted offer.

17.3 Neither the respondent nor the firm, corporation, partnership, or institution represented by the respondent, or anyone acting for such firm, corporation, or institution has violated the antitrust laws of this State or the Federal

Antitrust Laws (see section 12, above), nor communicated directly or indirectly the offer made to any competitor or any other person engaged in such line of business.

17.4 Pursuant to Section 2155.004, Government

Code, neither the respondent nor any person or entity which will participate financially in any contract resulting from this RFO has received compensation for participation in the preparation of the specifications for this RFO.

Under Section 2155.004, Government Code, the respondent certifies that the individual or business entity named in this offer or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate. Section 2155.004 prohibits a person or entity from receiving a state contract if they received compensation for participating in preparing the solicitation or specifications for the contract.

17.5 Pursuant to Section 231.006 (d), Family Code re:

individual or business entity named in this offer is not ineligible to receive the specified payment and acknowledges that this contract may be terminated and payment may be withheld if this certification is inaccurate. Furthermore, any respondent subject to Section 231.006 must include names and Social Security numbers of each person with at least 25% ownership of the business entity submitting the offer. Enter Name

& Social Security Numbers for each person.

This information must be provided prior to contract award.

Name:

Social Security Number:

Name:

Social Security Number:

Name:

Social Security Number:

Name:

Social Security Number:

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

Code Section 231.006 requires a bid or an application for a contract, grant, or loan paid from state funds to include the name and social security number of the individual or sole proprietor and each partner, shareholder, or owner with an ownership interest of at least 25 percent of the business entity submitting the bid or application. The

Social Security number(s) will be kept confidential and only disclosed in accordance with Texas Family Code

Section 231.302.

17.6 Sections 2155.006 and 2261.053, Government

Code, prohibit state agencies from awarding contracts to any 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, Government Code, occurring after September 24, 2005. Under Section 2155.006 and 2155.0061, Government

Code, the respondent certifies that the individual or business entity named in this offer or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated, and payment withheld if this certification is inaccurate.

17.7 As required by Section 2252.903, Government

Code, respondent agrees that any payments due under a purchase order or contract resulting from this RFO shall be directly applied towards eliminating any debt or delinquency including, but not limited to, delinquent taxes, delinquent student loan payments, and delinquent child support, until the debt is paid in full, regardless of when it arises. Respondent shall comply with rules adopted by the Comptroller of Public

Accounts under Sections 403.055, 403.0551, 2252.903, Government Code and other applicable laws and regulations regarding satisfaction of debts or delinquencies to the State of Texas.

17.8 Respondent certifies that they are in compliance

with Section 669.003 of the Government Code, relating to contracting with executive head of a

State agency. If Section 669.003 applies, respondent will complete the following information in order for the offer to be evaluated:

Name of Former Executive:

Name of State Agency:

Date of Separation from State Agency:

Position with Respondent:

Date of Employment with Respondent:

17.9 In accordance with Section 2155.4441, Government Code, respondent agrees that during the performance of a contract for services it shall purchase products and materials produced in Texas when they are available at a price and time comparable to products and materials produced outside this state.

17.10 Respondent represents and warrants that

payment to the respondent and the respondent’s receipt of appropriated or other funds under any contract resulting from this RFO are not prohibited by Section 556.005 or Section 556.008, Government Code, relating to the prohibition of using state funds for lobbying activities.

17.11 Respondent represents and warrants that it has no

actual or potential conflicts of interest in providing the requested items to TDCJ under the RFO and any resulting contract, if any, and that respondent’s provision of the requested items under the RFO and any resulting contract, if any, would not reasonably create an appearance of impropriety.

17.12 Respondent certifies that they are in compliance

with Section 572.069 of the Government Code relating to employment of a former state officer or employee. A former state officer or employee of the TDCJ who during the period of state service or employment participated on behalf of the TDCJ on a procurement or contract negotiation involving a business entity may not accept employment from that business entity before the second anniversary of the date the officer's or employee's service or employment with the TDCJ ceased.

17.13 If the respondent is required to make a

certification pursuant to Texas Government

Code, Section 2270.002, the respondent certifies that they are in compliance with Chapter 2270 of the Government Code relating to the prohibition of a state agency contracting with companies that boycott Israel or boycotts Israel during the term of the Contract. The respondent certifies that the individual or business entity named in this offer or Contract is not ineligible to receive the specified Contract and acknowledges that this Contract may be terminated and Payment withheld if this certification is inaccurate.

17.14 Respondent certifies that they are in compliance

with Chapter 2252.152 of the Government Code relating to the prohibition of a state agency contracting with companies that are engaged in business with Iran, Sudan, or foreign terrorist organizations. The respondent certifies that the individual or business entity named in this offer or Contract is not ineligible to receive the specified Contract and acknowledges that this https://www.sam.gov/

ITEMS BELOW APPLY TO AND BECOME A PART OF OFFER.

ANY EXCEPTIONS THERETO MUST BE IN WRITING.

Rev. 03/07/2023 Page 4 of 5

Contract may be terminated and Payment withheld if this certification is inaccurate.

18. Note to Respondents:

Any terms and conditions attached to an offer will not be considered unless specifically referred to on this offer form and may result in the disqualification of the offer.

19. Protest Procedures:

Any actual or prospective respondent who is aggrieved in connection with this RFO, evaluation, or award of any contract resulting from this RFO, 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.

20. Dispute Resolution:

Any dispute arising under this Contract that is not disposed of by mutual agreement between the TDCJ and

Contractor shall be resolved according to “Procedures for Resolving Contract Claims and Disputes,” Rule

155.31, Texas Administrative Code, Title 37, Part 6, Chapter 155, Subchapter C.

A. If authorized to adjudicate a breach of contract claim against the TDCJ under Chapter 114, Civil Practice and Remedies Code, Contractor, prior to filing suit, shall comply with the dispute resolution process in subsections 155.31(h) – (q) of Rule 155.31 “Procedures for Resolving

Contract Claims and Disputes.” However, references therein to Chapter 2260 or the State

Office of Administrative Hearings shall be inapplicable if contractor files suit under Chapter

114, Civil Practice and Remedies Code, after completion of the dispute resolution process.

B. Neither the occurrence of an event nor the pendency of a claim constitutes grounds for the suspension of performance by the contractor, in whole or in part.

C. This provision shall not be construed to prohibit contractor from seeking any other legal or equitable remedy to which it is entitled.

21. Availability of Funds for Next Fiscal Year

Funds are not presently available for performance under this contract beyond the current fiscal year for which the contract becomes effective. (Note: a state agency's fiscal year begins September 1st and runs through August 31st). TDCJ's obligation for performance of this contract beyond the fiscal year for which the contract becomes effective is contingent upon legislative approval and the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of

TDCJ for any payment may arise for performance under this contract beyond the fiscal year for which the contract becomes effective until funds are made available to TDCJ for performance and until the contractor receives notice of availability. Refer to

Section 23, Paragraph 2, Termination for Unavailability of Funds, for TDCJ's right to terminate this contract in the event it is appropriated insufficient funds.

22. Termination for Unavailability of Funds

The payment of money by TDCJ or the State under any provisions hereof is contingent upon the availability of funds appropriated by the Legislature to an agency or department of the State to cover the provisions hereof.

Neither the State, TDCJ nor its elected officials, officers, employees, agents, attorneys or other individuals acting on behalf of the State, make any representations or warranty as to whether any appropriation will, from time to time during the term of this contract, be made by the Legislature of the State.

The contractor acknowledges that TDCJ does not receive a "line item appropriation". If the funds appropriated are not sufficient to pay for TDCJ's operating expenses, contractual obligations and other financial obligations, TDCJ, in its sole discretion, will determine what operating expenses, contractual obligations and other financial obligations it will pay.

In the event TDCJ determines it was not appropriated sufficient money, TDCJ may terminate this contract without paying contractor any additional money or penalty; provided that TDCJ will pay the contractor for obligation that occurred up to the time of termination.

17.15 Bidder certifies that they are in compliance with

Chapter 2274 of the Government Code relating to the prohibition of contracts or other agreements with certain foreign-owned companies in connection with critical infrastructure in this state. The bidder certifies that the individual or business entity named in this bid is not ineligible to receive the specified Contract and acknowledges that this contract may be terminated and Payment withheld if this certification is inaccurate..

17.16 Pursuant to Texas Health & Safety Code Section

161.0085, respondent certifies that 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.

Respondent acknowledges that such a vaccine or recovery requirement would make Respondent ineligible for a state-funded contract.

17.17 Pursuant to Government Code Section 2274.0102, respondent certifies that 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 Government Code Section 2274.0103, or (2) headquartered in any of those countries.

17.18 If Respondent is required to make a verification

pursuant to Section 2274.002 of the Texas Government Code, Respondent verifies that 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.

17.19 If Respondent is required to make a verification

pursuant to Section 2274.001 of the Texas Government Code, Respondent certifies that Respondent does not boycott Israel and will not boycott Israel during the term of the contract resulting from this solicitation. If Respondent does not make that cerification, Respondent must indicate in its Response and state why the cerification is not required.

17.20 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.

17.21 If Respondent is required to make a verification

pursuant to Section 2274.002 of the Texas Government Code, Respondent verifies that 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 Respondent does not make that verification, Respondent must so indicate in its Response and state why the verification is not required.

17.22 Pursuant to Texas Constitution, Article VIII §6, 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 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 or 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 attorney's 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.

17.23 Pursuant to Section 2054.0593(d)-(f) of the Texas

Government Code, relating to cloud computing state risk and authorization management program, Respondent represents and warrants that it complies with the requirements of the state risk and authorization management program and Respondent agrees that throughout the term of the contract it shall maintain its certifications and comply with the program requirements in the performance of the contract.

http://sao.fraud.texas.gov/ https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm

ITEMS BELOW APPLY TO AND BECOME A PART OF OFFER.

ANY EXCEPTIONS THERETO MUST BE IN WRITING.

Rev. 03/07/2023 Page 5 of 5

29. Independent Contractor

Respondent is and shall remain an independent contractor in relationship to the TDCJ. The TDCJ shall not be responsible for withholding taxes from payments made under any contract resulting from this

RFO. Respondent shall have no claim against the

TDCJ for vacation pay, sick leave, retirement benefits, social security, worker's compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.

30. Rights to Data, Documents and Computer Software

(State Ownership)

Any software, research, reports, studies, data, photographs, negatives or other documents, drawings or materials prepared by respondent in the performance of its obligations under this contract shall be the exclusive property of the State of Texas and all such materials shall be delivered to the State by the respondent upon completion, termination, or cancellation of this contract. Respondent may, at its own expense, keep copies of all its writings for its personal files. Respondent shall not use, willingly allow, or cause to have such materials used for any purpose other than the performance of respondent’s obligations under this contract without the prior written consent of the State; provided, however, that respondent shall be allowed to use non-confidential materials for writing samples in pursuit of the work.

The ownership rights described herein shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works.

requirement to cooperate is included in any subcontract it awards.

24.2 The parties agree that the terms, covenants and

provisions of paragraph 25.1 shall survive the termination of this purchase order.

25. Fraud, Waste or Abuse

In accordance with Texas Government Code, Chapter

321, the State Auditor’s Office (SAO) is authorized to investigate specific acts or allegations of impropriety, malfeasance or nonfeasance in the obligation, expenditure, receipt or use of state funds. If there is a reasonable cause to believe that fraud, waste or abuse has occurred at this agency, it can be reported to the

SAO by calling 1-800-892-8348 or at the SAO’s website at http://sao.fraud.texas.gov. It can also be reported to the TDCJ Office of the Inspector General at 1-866-372-8329, the TDCJ Internal Audit Division at 1-936-437-7100, or Crime Stoppers at

1-800-832-8477.

26. Conflict of Interest

Under Section 2155.003, Government Code, a TDCJ employee may not have an interest in, or in any manner be connected with a contract or offer for a purchase of goods or services by an agency of the state; or in any manner, including by rebate or gift, accept or receive from a person to whom a contract may be awarded, directly or indirectly, anything of value or a promise, obligation, or contract for future reward or compensation. Any individual who interacts with public purchasers in any capacity is required to adhere to the guidelines established in Section 1.2 of the State of Texas Procurement Manual, which outlines the ethical standards required of public purchasers, employees, and respondents who interact with public purchasers in the conduct of state business, and with any opinions of or rules adopted by the Texas Ethics

Commission. Entities who are interested in seeking business opportunities with the State must be mindful of these restrictions when interacting with public purchasers.

27. Disclosure of Interested Parties

In accordance with Texas Government Code

2252.908, a governmental entity or state agency may not enter into a contract valued at $1 million dollars or greater with a business entity unless the business entity, in accordance with Texas Administrative Code, Title 1, Part 2, Chapter 46, Rules 46.1, 46.3 and 46.5, submits a disclosure of interested parties to the governmental entity or state agency at the time the business entity submits the signed contract to the governmental entity or state agency.

The disclosure of interested parties must be submitted on a form, and in a manner, prescribed by the Texas

Ethics Commission. The Disclosure of Interested

Parties Form (Form 1295) and instructions may be found at:

https://www.ethics.state.tx.us/whatsnew/elf_info_for m1295.htm.

28. Force Majeure:

Neither respondent nor TDCJ shall be liable to the other for any delay in, or failure of performance, of any requirement included in any contract resulting from this RFO caused by force majeure. The existence of such causes of delay or failure shall extend the period of performance until after the causes of delay or failure have been removed provided the non-performing party exercises all reasonable due diligence to perform. Force majeure to include but are not limited to, acts of God, or of the public enemy, fires, floods, epidemics, strikes, freight embargos, or unusually severe weather, failure of transportation, or other causes that are beyond the reasonable control of either party and that by exercise of due foresight such party could not reasonably have been expected to avoid, and which, by the exercise of all reasonable due diligence, such party is unable to overcome. Each party must inform the other in writing, with proof of receipt, within three (3) business days of the existence of such force majeure, or otherwise waive this right as a defense.

23. Texas Public Information Act

Notwithstanding any provisions of this RFO to the contrary, respondent understands that TDCJ will comply with the Texas Public Information Act

(Chapter 552, Government Code) as interpreted by judicial opinions and opinions of the Attorney General of the State of Texas. Information, documentation, and other material in connection with this solicitation or any resulting contract may be subject to public disclosure pursuant to the Texas Public Information Act. Within three (3) days of receipt, respondent will refer to TDCJ any third party requests, received directly by respondent, for information to which respondent has access as a result of or in the course of performance under any contract resulting from this

RFO. Any part of the solicitation response that is of a confidential or proprietary nature must be clearly and prominently marked as such by the respondent.

The requirements of Subchapter J, Chapter 552, Government Code, may apply to this bid or contract/purchase order and the contractor or vendor agrees that the contract/purchase order can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter. Respondent represents and warrants that it will comply with the requirements of Section 552.372(a) of the Texas Government Code.

24. Right to Audit

24.1 In addition to and without limitation on the other

audit provisions of this RFO, pursuant to Section 2262.154, Texas Government Code, the state auditor may conduct an audit or investigation of the respondent or any other entity or person receiving funds from the state directly under this contract or indirectly through a subcontract under this contract. The acceptance of funds by the respondent or any other entity or person directly under this contract or indirectly through a subcontract under this 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. This RFO or any contract resulting from this RFO may be amended unilaterally by TDCJ to comply with any rules and procedures of the state auditor in the implementation and enforcement of Section

2262.003, Texas Government Code. Respondent will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through the respondent and the